Judgments

[1993] 3 F.C. 675

A-223-92

Kwong Hung Chan (Appellant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Chan v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Heald, Mahoney and Desjardins JJ.A.—Vancouver, April 27; Ottawa, July 21, 1993.

Citizenship and Immigration — Status in Canada — Convention refugees — Appeal from CRDD decision appellant not Convention refugee — Appellant and wife had second child contrary to China’s one-child per couple population control policy — Local authorities pressuring him or wife to undergo sterilization — Appellant consenting to procedure, but fleeing China before performed — Refugee claim based on well-founded fear of persecution because of political opinion, membership in particular social group — Whether fear of forced sterilization basis for well-founded fear of persecution — Whether persecution because of membership in particular social group — Whether persecution because of political opinion.

This was an appeal from a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board that the appellant was not a Convention refugee. The appellant is a citizen of the People’s Republic of China, which has adopted a one-child-per-couple population control policy. The central government sets a nationwide goal for the number of authorized births, which local authorities are to enforce or face penalties. To that end economic incentives and penalties are generally used to enforce the policy, but some local authorities have resorted to forced sterilization or abortion. Such practices, while not authorized by the central government, are tacitly accepted. In 1989 the appellant’s wife gave birth to their second child. In response to pressure from local authorities, the appellant agreed to undergo sterilization within three months, but left the country before expiry of that period. Upon his arrival in Canada he claimed Convention refugee status on account of his political opinion and membership in a particular social group. He fears that if he returns to China he will be forcibly sterilized and therefore is unwilling to avail himself of the protection of China, his country of nationality. The Board held that sterilization in itself was not persecution for a Convention reason and that the appellant’s fear of persecution was not well-founded. The appellant relied upon Cheung v. Canada (Minister of Employment and Immigration) as authority for the proposition that forced sterilization as practised in China fell within the persecution contemplated by the Convention refugee definition. He also submitted that failure to agree to sterilization under the one-child policy would be perceived as an anti-governmental political opinion.

The issue was whether the appellant had a well-founded fear of persecution by reason of political opinion or membership in a particular social group.

Held (Mahoney J.A. dissenting), the appeal should be dismissed.

Per Heald J.A.: The appellant did not have a well-founded fear of persecution. Forced sterilization of a man or woman is persecution. The reasonableness of a fear of sterilization depends on the evidence in respect of the practices of the local authorities. A determination of whether a person with more than one child has a well-founded fear of persecution is a finding of fact. The Board made no express finding as to whether the appellant, if returned to China, faced a reasonable chance of forced sterilization. Economic sanctions were imposed against the appellant and his family (his wife lost her job for breaching the one-child policy), but economic sanctions are not sufficient to establish persecution. They are a valid measure for enforcing a valid policy of general application, the one-child policy.

The appellant had not established persecution by reason of membership in a “particular social group”. Three categories of particular social groups have been recognized by the Supreme Court of Canada: (1) groups defined by an innate or unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake their association; and (3) groups associated by a former voluntary status unalterable due to its historical permanence. That Court has held that the enumerated grounds were intended to function as a built-in limitation to the obligations of signatory states. Two principles providing guidance in defining “particular social groups” were identified. First, the Court approved the notion of analogous grounds to delineate “particular social groups”. Second, a person claiming persecution on the basis of membership in a “particular social group” should be targeted for what he was, not for what he did. The particular social group to which the appellant belonged was “parents in China with more than one child who disagree with forced sterilization”. Such a group does not fall within any of the categories of “particular social group” established by Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The appellant’s fear stemmed from what he did, not from what he was. The parameters of the particular social group could not be narrowed as distinctions based on marital status or gender emanate from the particular circumstances of the appellant, whereas a particular social group must be defined by societal, not individual factors. Even if the social group were narrowed to “parents with more than one child who are faced with and oppose sterilization”, it would not fall within the Ward categories because of the lack of association amongst individuals in this group. Those faced with forced sterilization cannot be identified until after the treatment has been ordered. A fundamental objection to acceptance of parents with more than one child who are faced with forced sterilization as a “particular social group” is that the group is defined solely by the fact that its members face a particular form of persecutory treatment. The finding of membership in a particular social group is dictated by the finding of persecution. This logic completely reverses the statutory definition of Convention refugee, wherein persecution must be driven by one of the enumerated grounds, and not vice versa, and voids the enumerated grounds of content.

Nor had appellant established that the alleged persecution was by reason of “political opinion”. A very broad definition of “political opinion” would obviate all of the enumerated grounds, but Ward affirmed that the enumerated grounds are a distinct and vital component of the definition of Convention refugee. Some limits on the definition of “political opinion” were required. While disagreement with the one-child policy in China is a political statement as it pertains to government policy, there was no evidence that persons who simply voice their opposition to the one-child policy or to forced sterilization are not tolerated. The persecutory treatment arose from a breach of the one-child policy, not from a refusal to submit to sterilization. Breach of the one-child policy and reluctance to undergo sterilization would not be viewed as anything more than breach of a law and reluctance to undergo the ensuing penalty. There was no evidence that the authorities perceived the appellant’s acts as a political statement or as a challenge to their authority. Determination of whether actions will be perceived as a challenge to a persecutor’s authority is contextual. The evidence did not support a finding that the local Chinese authorities believed that acceptance of the one-child policy was integral to their authority. The one-child policy was within the jurisdiction of the Chinese government and by itself was not persecutory. Sanctions imposed for breach of the policy must be accepted. A finding that the appellant faces persecution by reason of his political opinion would have to be based on an abhorrence of the penalty for breach of a valid policy. The persecution alone motivates the determination of Convention refugee status. The definition of Convention refugee militates against a distinction between persecution and the enumerated grounds.

Per Mahoney J.A. (dissenting): That the appellant did not wish to have any more children and his statement that it would not be absolutely necessary for him to undergo sterilization did not support a conclusion that his fear of persecution, in the form of forced sterilization, was not well-founded. That was his opinion based on his personal intention, but there was no suggestion that the local authorities shared that opinion. This Court held in Cheung that forced sterilization as practised in China falls within the persecution contemplated by the Convention refugee definition. Involuntary sterilization—physical abuse that is an irreversible and serious intrusion on the basic rights of the individual—is persecution, regardless of whether it is inflicted upon a man or a woman. While the central government in China is not unable to protect its citizens from the excesses of the local authorities, by its passivity it is either tolerating or abetting the enforcement of the population control policy by a means which it officially disavows. A well-founded fear of forced sterilization is a well-founded fear of persecution and the appellant’s fear of forced sterilization were he to return to China is subjectively and objectively well-founded.

The particular social group involved herein is “married men in China whose wives are faced with forced sterilization because they have had more than one child and who agree to be sterilized in place of the forced sterilization of their wives”. It was held in Ward that the manner in which groups are distinguished for the purposes of discrimination law can be imported into the area of refugee law. Applying the “analogous grounds” approach used to determine whether equality rights guaranteed under Charter, section 15 have been breached, to the refugee determination process, the first question to be resolved is whether what the claimant fears is persecution and whether that fear is well-founded. What must next be decided is: (1) whether the reason for the persecution is membership in a particular social group, and if so, (2) whether that social group falls within one of the categories identified in Ward i.e. is the personal characteristic shared by members of the group analogous to race, religion, nationality or political opinion in that it is either unchangeable because it is innate or a fact rendered permanent by history or, although changeable, so fundamental to their human dignity that they should not be forced to abandon it? As to the second and third categories, “voluntary association” must be an antonym to the innate or unchangeable characteristics of the first and does not imply that an organization has necessarily been joined or an association formed. It is the shared reason fundamental to their human dignity that defines and constitutes the second group. A conscious act of association is not an essential element.

The legitimacy of China’s population control policy does not exclude persecution in pursuit of it from the Convention refugee definition. The right to reproductive control is fundamental to human dignity. Although there was no finding that the appellant would be forcibly sterilized if returned to China, persecution need not be certain for the fear of it to be well-founded. It is enough that there be a serious possibility of persecution. There is a serious possibility that the appellant will be forcibly sterilized if returned to China.

Per Desjardins J.A. (concurring in the result): Since there is no voluntary status here, if the appellant falls into one of the three categories of “particular social group” set out in Ward, it would be in the first, namely a group defined by an innate or unchangeable characteristic. What links members of a particular social group together must be so fundamental that it cannot be changed. If it were to be changed, it would destroy that person as a person. Disassociation of a person from his or her group would therefore be unacceptable. The innate or unchangeable characteristic referred to as the hallmark of the group must be distinguished from the basic human right which this group might defend. The innate characteristic must be so strong a factor that it makes a group of individuals what they are (i.e. gender, linguistic background, sexual orientation). It must exist independently of what they fight for. The persecutor’s perception of the social group is an external factor. A violation of a basic human right directed to a group of people does not by itself create a “particular social group”. The innate or unchangeable characteristic is an internal factor in the determination of the group. The internal characteristics must exist independently of the fact of persecution but, nevertheless, play a significant role in the persecution. The persecution must be feared or exist on account of the characteristics. The appellant is one of a number of persons who individually has resisted the one-child policy and as a consequence faces the same general sanction of forced sterilization. This group is not affiliated in a fundamental way so as to qualify as a “particular social group”. By refusing to be sterilized against his will, the appellant is claiming a basic human right (reproductive control). Forced sterilization violates a basic human right. It has been suggested that the Chinese one-child policy may not run counter to the Universal Declaration of Human Rights since it may ensure “dignity” for the generations to come. The appellant was targeted because of what he did (violated the one-child policy), not because of what he is (a Chinese father). The reprimand, i.e. forced sterilization, is in violation of his basic human right, but this right is common to humanity, not common to his group. He objects to forced sterilization. That is what he is fighting against. It is not an innate characteristic of his group. The group to which the appellant claims to belong is cognizable by the decision of local Chinese authorities who use forced sterilization as a means of enforcing a general government policy. What links the group together is an external factor which is insufficient to meet the definition of particular social group since the group cannot be defined merely by virtue of their common victimization as the objects of persecution. There is no particular social group to which the claimant belongs in an innate or unchangeable way which provides the necessary ground for his claim.

Any opinion on any matter related to state affairs expressed by a claimant or imputed to him by any authority may constitute the basis for a claim under political opinion. The appellant did not state his opposition either to the one-child policy or to sterilization. It is doubtful that the appellant’s action, motivated in defence of his basic human rights, may be viewed by the local Chinese authorities as a gesture of defiance to the national authority in the absence of specific evidence to this effect and considering that the local authorities in imposing sterilization are not acting with the full recognition of the state, although such tacit recognition might exist.

“Persecution” under the Convention covers treatment so abhorrent that it would be inconceivable to consider that such treatment could be voluntarily requested. The legitimacy of the Chinese population control policy is not in question. As a general proposition it cannot be said that when a foreign government employs means that violate basic human rights to ensure the respect of a valid social objective, such means amount to persecution. All relevant circumstances must be considered. The situation here falls beyond the scope of the Convention which was meant to protect those who become victims by virtue of the pursuit of illegitimate goals by the state, not those who resist the realization of valid state objectives. The Convention does not cover violations of human rights imposed by local authorities in the pursuit of legitimate state objectives i.e. population control.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.

Criminal Code, R.S.C., 1985, c. C-46.

Federal Court Act, R.S.C., 1985, c. F-7, s. 52(c)(i).

Immigration Act, R.S.C., 1985, c. I-2, ss. 2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 69.1 (as enacted idem, s. 18).

International Covenant on Civil and Political Rights, [1976] Can. T.S. No. 47.

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.

United Nations Protocol Relating to the Status of Refugees, January 31, 1967, [1969] Can. T.S. No. 29.

Universal Declaration of Human Rights, U.N. Gen. Ass. Res. 217 A (III), Dec. 10, 1948, Arts. 3, 5.

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321; Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314; (1993), 102 D.L.R. (4th) 214; 19 Imm. L.R. (2d) 81; 153 N.R. 145 (C.A.); Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.); E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; (1986), 31 D.L.R. (4th) 1; 185 A.P.R. 273; 61 Nfld. & P.E.I.R. 273; 8 C.H.R.R. D/3773; 13 C.P.C. (2d) 6; 71 N.R. 1.

CONSIDERED:

R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81; Davis v. Johnson, [1978] 2 W.L.R. 553 (H.L.); Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.).

REFERRED TO:

Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., [1973] S.C.R. 596; (1973), 35 D.L.R. (3d) 1; Surujpal v. Minister of Employment and Immigration (1985), 60 N.R. 73 (F.C.A.); Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.); Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 57 D.L.R. (4th) 153 (C.A.); Minister of Employment and Immigration v. Widmont, [1984] 2 F.C. 274; (1984), 56 N.R. 198 (C.A.); National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 518 (C.A.); Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241; Matter of Acosta, Interim Decision 2986, 1985 WL 56042 (B.I.A.).

AUTHORS CITED

Aird, John S. Slaughter of the Innocents: Coercive Birth Control in China. Washington: AEI Press, 1990.

Alford, William P. “Making a Goddess from Loose Sand: Thoughts on Human Rights in the People’s Republic of China”, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus. Edited by An-Na’im, A. A. Philadelphia: University of Pennsylvania Press, 1992.

Beaudoin, G.-A. and Ed Ratushny, editors. The Canadian Charter of Rights and Freedoms, 2nd ed. Toronto: Carswell, 1989.

Blaustein, Albert P., et al. editors. Human Rights Sourcebook. New York: Paragon House Publishers, 1987, at p. 276.

Clarke, Jennie A. “The Chinese Population Policy: A Necessary Evil?” (1987), 20 N.Y.U. J. Int’l L. & Pol. 321.

Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Les Éditions Yvon Blais Inc., 1991.

Country Reports on Human Rights Practices for 1990: Report submitted to the Committee on Foreign Relations U.S. Senate and the Committee on Foreign Affairs House of Representatives by the Department of State. Washington: U.S. Government Printing Office, 1991.

Fitzmaurice, G. G. “The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points” (1951), 28 Br. Y. B. Int’l L. 1.

Gibson, D. “Interpretation of the Canadian Charter of Rights and Freedoms: Some General Considerations” in Tarnopolsky, W. S. and G.-A. Beaudoin, eds. The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswell, 1982.

Goodwin-Gill, Guy S. The Refugee in International Law. Oxford: Clarendon Press, 1983.

Graves, Maureen. “From Definition to Exploration: Social Groups and Political Asylum Eligibility” (1989), 26 San Diego L. Rev. 739.

Helton, Arthur C. “Persecution on Account of Membership in a Social Group As a Basis for Refugee Status” (1983), 15 Colum. Hum. Rts. L. Rev. 39.

Hernández, B. E. “To Bear or Not to Bear: Reproductive Freedom as an International Human Right” (1991) XVII Brooklyn J. Int’l L. 309.

Schabas, W. A. “Kindler and Ng: Our Supreme Magistrates Take a Frightening Step into the Court of Public Opinion” (1991), 51 R. du B. 673.

Shiers, E. Tobin. “Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers” (1990), 30 Va. J. Int’l L. 1007.

United Nations Economic and Social Council, E/CONF.60/19. Report on the World Population Conference, Bucharest, Romania, August 19-30, 1974.

United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, 1988.

APPEAL from a decision of the Convention Refugee Determination Division that the appellant, who had contravened China’s one-child population control policy by fathering two children and feared forced sterilization if returned there, was not a Convention refugee. Appeal dismissed.

COUNSEL:

Simmi K. Dhami for appellant.

Deirdre A. Rice for respondent.

SOLICITORS:

Chow, Dhami & Company, Vancouver, for appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Heald J.A.: This is an appeal pursuant to leave granted by this Court from a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) wherein the appellant was determined not to be a Convention refugee pursuant to section 69.1 of the Immigration Act [R.S.C., 1985, c. I-2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18)].

Facts

The appellant is a citizen of the People’s Republic of China (PRC). He fled the PRC on July 19, 1990, travelling initially to Hong Kong, and on July 23, 1990, proceeding to Canada where he immediately sought Convention refugee status. His claim is based on a fear of persecution on account of his political opinion and his membership in a particular social group. The appellant’s testimony was to the effect that during the cultural revolution his family was persecuted due to his father’s background as a landowner. The appellant operated a restaurant in Guangzhou. On June 5 and 6, 1989, students in the pro-democracy movement demonstrated outside his restaurant. The appellant expressed his support of the movement by giving food and drink to the students. He also contributed money to their cause. After the students’ movement had been crushed by the authorities, the appellant began to receive visits at his restaurant from Public Security Bureau officers (PSB). Between July of 1989 and April of 1990, PSB officers visited the restaurant at least thirteen times. They accused the appellant of participating in the pro-democracy movement. They also interrogated members of his staff and his customers concerning the activities of the appellant and the student demonstrators. In July of 1989, the appellant voluntarily reported his pro-democracy activities to the PSB. In November of 1989 the appellant’s wife gave birth to their second child. His evidence was that the PSB learned of the second birth and then accused him of violating the birth control policy of the PRC. PSB officers visited his home on five different occasions. His wife lost her job due to their breach of the one-child policy. The appellant agreed to undergo sterilization within three months but left the PRC in July of 1990 before the expiration of the three-month period and without being sterilized. He claimed that his family continued to be harassed for violating the one-child policy after his departure.

The Decision of the Board (Appeal Book Vol. II, page 269)

The Board dealt, initially, with the appellant’s refugee claim based on his membership in a particular social group. The social group considered was the appellant’s family. While agreeing that the appellant had suffered persecution during the Cultural Revolution because of his family background, the Board concluded that there was no evidence supporting his claim to persecution after the Cultural Revolution. Actually, he had been able to obtain a university education as well as managerial positions during that period. On this issue the conclusion was (Appeal Book, Vol. II, page 269):

… this panel does not find the claimant to have good grounds for fearing persecution based on his membership in a particular social group, namely, his family background.

Turning then to the appellant’s claim to a well-founded fear of persecution on the grounds of his political opinion, it was noted that the appellant was never arrested or detained after he voluntarily confessed his pro-democracy activities to the PSB in July and August of 1989. The Board further observed that there was no evidence to suggest that the PSB had a continuing interest in the appellant’s pro-democracy activities after April, 1990. Finally, it was found that the appellant’s family encountered no difficulty in renewing the appellant’s driver’s licence with the concurrence of the PSB in December of 1990, five months after the appellant had fled the PRC. Concerning the sterilization issue, the Board stated (Appeal Book, Vol. II, page 269):

The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was advanced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant’s fear of persecution in the form of a forced sterilization to be well-founded.

Discussion

At the outset of her oral submissions to us, counsel for the appellant frankly stated that the sole issue which she would be raising in this appeal was “the sterilization issue” and the impact of this Court’s recent decision in Cheung v. Canada (Minister of Employment and Immigration).[1] As noted supra, the Board found that the claim of persecution because of membership in the appellant’s family was not supported by the evidence. In my view that conclusion was reasonably open to the Board on this record and should not be disturbed. Likewise, the Board’s conclusion that the evidence before it did not support the claim to a well-founded fear of persecution based on the appellant’s political opinion, was also supportable on the record. Accordingly we agree with counsel that the sole issue before us is the “sterilization issue” which necessarily engages a consideration of the relevance of the Cheung decision to the factual situation at bar.

As noted in Cheung, the analysis must address two issues: (a) the existence of a well-founded fear of persecution (b) by reason of race, religion, nationality, political opinion, or membership in a particular social group (the enumerated grounds). The appellant bases his claim on membership in a particular social group and political opinion.

(a) a well-founded fear of persecution

In Cheung this Court concluded that “forced or strongly coerced sterilization” constituted persecution since forced sterilization violated a woman’s security of the person and subjected her to cruel, inhuman and degrading treatment. I agree that on the evidence before us, it has not been shown that sterilization of a man is qualitatively different from sterilization of a woman. Therefore, pursuant to Cheung, forced or strongly coerced sterilization of a man or woman is persecution.

It must be noted that the decision in Cheung made a distinction between women who have more than one child and have a reasonable fear of forced sterilization and those who have more than one child but do not have a reasonable fear of forced sterilization. This derives from Mr. Justice Linden’s clear statement (page 322) that not “all women in China who have more than one child may automatically claim Convention refugee status. It is only those women who also have a well-founded fear of persecution as a result of that who can claim such status.” All women who have more than one child have violated the one-child policy and should the authorities become aware of the second child, face a reasonable chance of being subjected to the “penalties” associated with breach of the one-child policy. Thus a distinction must be drawn between those women who face a reasonable chance of acceptable sanctions (perhaps economic) and those who have a reasonable fear of the persecutory sanction of forced sterilization. This distinction must be made in light of the fact (which was relied on in Cheung) that forced sterilization is not a law of general application; rather, it is an enforcement measure taken by some local authorities which is, at most, tacitly accepted by the central government. The reasonableness of a fear of sterilization, therefore, would seem to depend on the evidence in respect of the practices of the pertinent local authorities.

Accordingly it follows that a determination of whether or not a person with more than one child has a well-founded fear of persecution is a subtle finding of fact. In this respect, it is important to note the uncontested facts in Cheung.

In Cheung the claimant was forced to discontinue use of an intra-uterine device and underwent numerous abortions. After the birth of her second child, the Family Planning Bureau came to her home and took her away to be sterilized; the sterilization operation was postponed for six months because of an infection; before the six-month period had expired, Ms. Cheung fled Guanazhou in order to avoid being sterilized. Mr. Justice Linden notes in his reasons (at page 318):

It was accepted by the Board that the appellant would be sterilized if she were forced to return to China.

This is a clear and unequivocal finding of fact which is amply supported by cogent evidence.

In the present case, the Board made no express finding in respect of whether the appellant, if returned to China, faced a reasonable chance of forced sterilization. Moreover, his testimony relating to this point is equivocal. The record of the hearing before the Board reveals that the appellant gave the following evidence (Appeal Book, Vol. II, page 258):

Q.  Did you ever intend to abide by their request for sterilization?

A.   I feel that whether one would like to take a sterilization is his own choice. Even though I’m not going to have a third child, it would not be absolutely necessary for me to take a sterilization operation. So I had never thought of going to have this kind of cruel operation.

and at pages 259-260:

Q.  What do you think would happen if you were to return to China?

A.   If I going back to China, the most possible thing would be arrest, put in jail. Could also be unemployed for the rest of my whole life and could not earn a living. If talking something more serious, then I probably will be murdered.

Q.  Why do you feel that this would happen to you if you were to return?

A.   What had happened around me were things that were—that would be against the government. Chinese Government do not listen to complaints or willing to go for reasoning. Regarding my second child, it is a fact that that has affect the bonus of some of the neighbourhood committee members. They would be hostile and would try to revenge. They would take the excuse of my difference in political view, and arrest me and put me in jail.

Additionally, the appellant made the following statement in his PIF (Personal Information Form), Appeal Book, Vol. I, page 37:

During my absence of about two months the PSB made five more visits to my home. During the first of these I was at home. The PSB discovered my second child (son, unregistered). Before they left they told me I have two days to register son at PSB. I did go.

During the second and third of these five visits I was not at home. My family later told me that the PSB said I have violated the birth policy and must pay fine of 8,000 and that either my wife or I must undergo sterilization.

During the fourth visit I was at home. The PSB asked me to confirm when I would pay the fine. They said they’d come again three days later. At that time they would ask for a written confirmation as to who (wife or I) would undergo sterilization.

Before the final PSB visit all my family agreed that we would pay the PSB lip service: I would sign the confirmation for sterilization then leave China. I did sign and left 20 days later.

The testimony evidenced the imposition (and threat of imposition) of important economic sanctions against the appellant and his family. Economic sanctions, however, are not, (as was indicated in Cheung) sufficient to establish persecution; economic sanctions are a valid measure for enforcing an equally valid policy of general application, the one-child policy.[2] Clearly these economic pressures influenced the appellant’s “consent” to sterilization. His decision may also have reflected the fact that he did not desire more children. Furthermore, the appellant failed to submit to sterilization within three months as he “agreed”. Still, five months after the appellant had left the country, his driver’s licence was renewed without difficulty and, while he said that his wife continued to be harassed, there was no evidence that she was being pressured to undergo sterilization.

In light of the need to distinguish between persons with more than one child who do and do not face a reasonable chance of forced sterilization, I am not convinced, on the evidence, that the appellant had a well-founded fear of persecution.

This conclusion, if correct, is decisive of the matter, since, as a consequence, the appellant is unable to establish an essential component of the Convention refugee definition. However, in the event I am in error in reaching this conclusion, I will proceed to a consideration of the other essential component of the Convention refugee test, namely, the enumerated grounds.

(b) the enumerated grounds

(i)         membership in a “particular social group”

The clear purport of Cheung is to the effect that women in China having more than one child and being faced with forced sterilization form a “particular social group” (see Linden J.A., at page 322). The decision cites a four-fold definition of the phrase “particular social group” suggested by this Court in Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154, at page 165:

(1) a natural or non-natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness and solidarity or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it.

More recently in the case of Canada (Attorney General) v. Ward,[3] the Supreme Court of Canada identified three categories of “particular social groups”:

(1) groups defined by an innate or unchangeable characteristic (for example, individuals fearing persecution on the basis of gender, linguistic background and sexual orientation);

(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association (for example, human rights activists); and

(3) groups associated by a former voluntary status, unalterable due to its historical permanence. An example of such a group might be persons who were capitalists and independent businessmen in pre-communist Eastern Europe.

In reaching its decision to restrict the meaning of “particular social group” to these categories, the Supreme Court initially discussed and then rejected a broad definition of the phrase “comprising basically any alliance of individuals with a common objective” or an interpretation which characterized a group “merely by virtue of their common victimization as the objects of persecution”. The enumerated grounds were not “superfluous” and were “intended to function as another built-in limitation to the obligations of signatory states.”[4] Two principles providing guidance in defining “particular social groups” were identified. Firstly, the Court approved the use of discrimination concepts and, in particular, the notion of analogous grounds to delineate “particular social groups”. This was the approach followed in Mayers and Cheung, supra.[5] Secondly, the Court held that a person claiming persecution on the basis of membership in a “particular social group” should be targeted for what he or she is or was “in an immutable or fundamental way”, not what he or she does or did.[6]

Counsel for the appellant submitted that, on the facts of this case, the “particular social group” envisaged by the Convention refugee definition in the Act would be “parents in China with more than one child who do not agree with the Government’s sterilization policy.” I would observe, initially, that since the evidence establishes that forced sterilization was a practice of local officials rather than the policy of the government, the definition, to be supportable on this record, would need to be revised to read “parents in China with more than one child who disagree with forced sterilization”. In any event, such a group does not fall within any of the three categories enunciated in Ward, supra:

(a) Category (1)—the number of offspring to a couple is neither innate or unchangeable—having children involves a choice. Furthermore, to state that persons share innate characteristics is merely to affirm that we are all human;

(b) Category (2)—the “group” identified in this case is patently not encompassed by category 2. There is no evidence of voluntary, active association. The voluntariness necessarily refers to the decision to associate of itself, not the decision to have a second child or to adopt a particular point of view. Such a conclusion is consistent with the Ward principle quoted supra, that the fear must emanate from what the claimant was, and not from what she or he did;

(c) Category (3)—Clearly this category does not apply in the circumstances at bar. If the “group” suggested by counsel is in existence it must necessarily be defined in the “present tense”. By no stretch of the imagination can this “group” be said to have unchangeable membership because of “historical permanence.”[7]

This record does not establish a distinction between parents with more than one child who agree with forced sterilization and parents with more than one child who do not agree with it. Moreover, I see no principled basis for discrimination between parents who disagree with forced sterilization on the basis that some have breached and others have not breached the one-child policy. Arguably, the latter group have suffered more than the former group. In any event, the distinction between parents who have and have not breached the one-child policy derives from what the individuals have done (violate a valid Chinese law) and not from what the individuals are.

Accordingly, and for the reasons given supra, I have concluded that “the social group” submitted by the appellant is not encompassed by any of the categories identified in the Ward decision.

Furthermore, I am unable to agree that, on this record, it is possible to significantly narrow the parameters of the “particular social group”. There is no evidence supporting a distinction between married and unmarried men or between married men and married women. These distinctions emanate entirely from the particular circumstances of this appellant whereas a particular social group, by definition, must be defined by societal, not individual factors. In addition, there is no evidence in this case that the appellant’s wife was, initially, singled out by the authorities to undergo sterilization. To the contrary, the evidence clearly indicated that the authorities requested that either one of them undergo sterilization and, many months after the appellant had failed to comply with his “agreement” to undergo sterilization, there was no evidence that sterilization was being imposed on his wife.

The only possible description of a social group which is narrower than the one advocated by the appellant would be “parents with more than one child who are faced with and oppose forced sterilization.” However, for the reasons given supra, this group, likewise, does not fall within any of the Ward categories. I would again emphasize the lack of association amongst the individuals in this group. While parents who have breached the one-child policy are identifiable, there is no indication that the sub-group (those who are faced with forced sterilization) can be identified until after the treatment has been ordered.

This leads me to a fundamental objection to acceptance of the group of parents with more than one child who are faced with forced sterilization as a “particular social group”. This group, it seems to me, is defined solely by the fact that its members face a particular form of persecutory treatment. To put it another way, the finding of membership in a particular social group is dictated by the finding of persecution. This logic completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa) and voids the enumerated grounds of content. The logic also conflicts with the rejection, in Ward, supra, of groups defined “merely by virtue of their common victimization as the objects of persecution” [at page 729] and with the affirmation in Ward, supra, that the enumerated grounds were not “superfluous” but rather were intended to limit the reach of the definition of Convention refugee. While some may believe that the definition of Convention refugee should embrace all persons who have a reasonable fear of persecution, this is not the definition which Parliament has seen fit to enact. In the absence of legislative change, the Courts must interpret the definition of Convention refugee in the Immigration Act in a manner which gives meaning to all of its explicit terms.[8]

I find, therefore, that the appellant has not established persecution by reason of membership in a particular social group. As in Ward, the appellant’s fear clearly stems from what he did and not from what he was.

(ii)        political opinion

The appellant submitted that a failure by a citizen to agree to sterilization under the policy in force in the PRC was tantamount to a political statement in that it would be perceived as an anti-governmental political opinion, which would drive a well-founded fear of persecution. The only evidence which can be said to support this submission is the following question asked of the appellant and his answer thereto (Appeal Book, Vol. II, page 256):

Q.  And you state that they said that you had disobeyed the birth control policy. What is the birth control policy in China?

A.   The birth policy in China was one-child per family. Because I am the only son in the family, I myself would like to have more children.

In my view, such a statement should not be viewed as a political statement when considered in the context of the totality of the evidence in this case.

In Ward, supra, the Supreme Court referred to a “more general interpretation of political opinion” suggested by Goodwin-Gill in The Refugee in International Law (page 31) as “any opinion on any matter in which the machinery of state, government, and policy may be engaged”. Mr. Justice La Forest, however, hastened to add two refinements to this category.[9] Firstly, the opinion need not have been expressed outright—in some cases that opinion can be perceived from the actions of the claimant and is said to be imputed to the claimant. Secondly, the claimant need not actually hold the political opinion ascribed to him or her—as “[t]he examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution”.[10]

It is a truism that a persecutor would not persecute without believing that the person being persecuted was representative of an opinion that was antagonistic to the views of the persecutor. Moreover, the state may, at some time, be engaged in almost any issue and is likely to be involved frequently in issues relating to race, nationality, religion, and particular social groups or, the other enumerated grounds. Arguably, therefore, a very broad definition of “political opinion” obviates all of the enumerated grounds; the mere fact of persecution would satisfy the definition of Convention refugee. Since this conflicts with the affirmation of the Supreme Court in Ward that the enumerated grounds, are a distinct and vital component of the definition of Convention refugee, some limits on the definition of “political opinion” are required.

Turning to the instant case, I have no doubt that disagreement with the one-child policy in China is a political statement as it is a statement which pertains to an important governmental policy. There is, however, no evidence that persons who simply voice their opposition to the one-child policy or to forced sterilization are not tolerated. In fact, the central government, at least overtly, has not authorized coercive enforcement measures.[11] There remains the question of whether the appellant, who has breached the one-child policy and failed to submit to the resulting demand for sterilization, faces a well-founded fear of persecution (forced sterilization) by reason of political opinion. Again, I believe that the answer must be no. The persecutory treatment emanates not from a refusal to submit to sterilization but from breach of the one-child policy; breach is the cause; sterilization is the effect. There is no indication that the breach of the one-child policy and reluctance to undergo sterilization will be perceived by the central government or the local authorities as anything more than what it is—breach of a law and reluctance to undergo the ensuing penalty. An analogy to criminal law is apt. Breach of Criminal Code [R.S.C., 1985, c. C-46] provisions is not, in general, viewed as a political statement. In some contexts, the breach may become politically charged and expressly intended as a political statement. This is not, however, the case here where it has not been established that the breach was anything more than inadvertent. Certainly, there is no evidence that the authorities perceived the appellant’s acts as a political statement or as a challenge to their authority. Determination of whether the acts or views will be perceived as a challenge to a persecutor’s authority is, necessarily, contextual. For example, in the case of a persecutor whose authority is heavily based in religion, breach of a religious dictum might be perceived by that persecutor as a challenge to its authority to rule whereas if religion is not integral to the persecutor’s authority, the breach of the same dictum would probably not be perceived in the same way. In this case, I do not think that the evidence supports a finding that the local Chinese authorities believe that acceptance of the one-child policy is integral to their authority and hence a breach of that policy will not be perceived as a challenge to their authority to govern.

In conclusion, there is no evidence that the treatment in issue is motivated by anything other than the breach of the one-child policy. There is a plethora of documentary evidence which articulates the rationale for the one-child policy. In the book by John S. Aird, Slaughter of the Innocents: Coercive Birth Control in China, (A.B., Vol. 1, pages 83-84), it is stated that the government’s goal was to limit the population of China at 1.2 billion in the year 2006. Also on page 84, it is said:

By the middle of 1987 there was talk of revising the year 2000 target upward to 1.25 billion but even this figure was in danger of being exceeded. Fears were expressed about China’s ability to raise living standards and even to feed its population unless the goal was reached.

This policy is well within the jurisdiction of the Chinese government and cannot, in itself, be characterized as persecutory. Sanctions, in general, imposed for breach of the policy, must, as a consequence, be accepted. A finding that the appellant faces persecution by reason of his political opinion would have to be based uniquely on an abhorrence of the penalty for breach of a valid policy. The persecution alone motivates the determination of Convention refugee status. I too abhor the penalty, but the definition of Convention refugee under the Immigration Act militates for a distinction between persecution and the enumerated grounds. The Supreme Court has affirmed this in Ward.

Accordingly, it is my conclusion that the appellant has not succeeded in establishing that the alleged persecution is by reason of “political opinion.”

CONCLUSION

For all of the foregoing reasons, it follows that the within appeal should be dismissed.

* * *

The following are the reasons for judgment rendered in English by

Mahoney J.A. (dissenting): The appellant’s counsel chose not to argue any of the grounds of appeal raised in her memorandum and, instead, relying entirely on this Court’s recent decision in Cheung v. Canada (Minister of Employment and Immigration),[12] asserted a claim based solely on the appellant’s fear of sterilization as a member of a particular social group, namely “parents in China with more than one child who do not agree with the government’s sterilization policy.” I fail to see the basis upon which we might find the Refugee Division to have erred on some ground which the appellant, by his counsel, has expressly chosen not to argue on appeal, leading as a result to the respondent not presenting his case on that ground. I shall, therefore, deal with the appeal only on the ground argued.

For purposes of this appeal, a “Convention refugee” is defined by section 2 of the Immigration Act[13] as:

2. …

“Convention refugee” means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person’s nationality and … by reason of that fear, is unwilling to avail himself of the protection of that country,

The Appellant’s Evidence

The appellant was frequently absent from his home in 1990 prior to leaving China. In his Personal Information Form, hereinafter “PIF”, he wrote:[14]

During my absence of about two months the PSB made five more visits to my home. During the first of these I was at home. The PSB discovered my second child (son, unregistered). Before they left they told me I have two days to register son at PSB. I did go.

During the second and third of these five visits I was not at home. My family later told me that the PSB said I have violated the birth policy and must pay fine of 8,000 and that either my wife or I must undergo sterilization.

During the fourth visit I was at home. The PSB asked me to confirm when I would pay the fine. They said they’d come again three days later. At that time they would ask for a written confirmation as to who (wife or I) would undergo sterilization.

Before the final PSB visit all my family agreed that we would pay the PSB lip service: I would sign the confirmation for sterilization then leave China. I did sign and left 20 days later.

His relevant viva voce evidence follows.[15]

Q.  Mr. Chan, in your Personal Information Form you talk about some other PSB visits regarding your second son. Could you describe those visits, please?

A.  The second child of mine born in November of ‘89. Between April and June ‘90, the Public Security Bureau, together with the neighbourhood committee, were conducting census, and they discover that I have an extra child. They were very angry, and saying that we have disobeyed the birth control policy. It would be very difficult for me to tell you in detail. And they request us within two days we should report to the police station, because that night I was at home.

So two days after, I went to the police station and registered. At the registration, I just wrote a document saying that my second child was born and on what date.

Approximately a week after, they came to our house a second time. Every time when they came, its not an unusual thing they would insult us. During the second and third visit, they demand for a penalty for 8,000 dollars, and also either I or my wife should get a sterilization. If nobody was willing, then would be forcibly be taken to the—to get sterilization.

Since their visit four times, so our family discussed this problem, and saying that we will be put into writing in order to entertain their request, saying that I would be accept the sterilization operation.

…

The fifth time they came, they ask for that document and also for that 8,000 dollars. My wife lost her job because of their influence, and we told them we don’t have that kind of money. Regarding the termination of my wife’s position, not only at his [sic] work unit, and it was circulated that she would not be allowed to be employed, so that had affect us very much.

…

After three days after the fifth visit, I went to the police station and hand in the document saying that I would be willing to take the sterilization operation within three months, and 20 days after that, I left China. Even I have left my family, they still keep coming to our house, harassing us, asking when the operation will take place, and also ask for the penalty for that 8,000 dollars. This is the situation.

…

Q.  Now you stated that you signed the confirmation that you would undergo sterilization. Why did you sign that confirmation?

A.   Because I felt if I did not sign, I cannot accommodate their request. They can come every day, from the morning to night. The psychologically, we cannot take that, and also they can go one step ahead, terminate me from my job, and also terminate my parents’. If it has to come to such a stage that means we would not be able to live, so we sign—I signed this document so to pass this difficulty.

Q.  Did you ever intend to abide by their request for sterilization?

A.   I feel that whether one would like to take a sterilization is his own choice. Even though I’m not going to have a third child, it would not [be] absolutely necessary for me to take a sterilization operation. So I had never thought of going to have this kind of cruel operation.

The “PIF” and the viva voce testimony are entirely consistent.

The Documentary Evidence

The documentary evidence includes a publication of the American Enterprise Institute entitled Slaughter of the Innocents: Coercive Birth Control in China. It would, I think, be important to know something of the publisher and author and their points of view on birth control generally before considering its acceptance as objectively reliable.

The only other documentary evidence directed to China’s population control policy is in the February, 1991, Country Reports on Human Rights Practices for 1990 of the U.S. State Department. I accept its objectivity. It is worth quoting at some length for its description of the policy, its rationale and the sanctions by which compliance is sought and non-compliance punished.[16]

China’s population has roughly doubled in the past 40 years, seriously complicating the country’s ability to feed its people and develop its economy. In the early 1980’s, the Government set a goal of limiting the population to 1.2 billion by the year 2000. To meet this target, it adopted a comprehensive—and highly intrusive—family planning program aimed at achieving a-one-child-per-family policy for Han Chinese in urban areas (numerous exceptions are allowed for Han in rural areas). Ethnic minorities are either exempted or subject to less stringent population controls.

Individual and family decisions about bearing children are regulated by the State, with rewards for those who cooperate with, and severe sanctions against those who deviate from, official guidelines. The central Government sets an annual nationwide goal for the number of authorized births, apportioned down to the local level and, ultimately, to each work unit. In urban areas, couples are encouraged to delay marriage until well after the legal minimum age of 22 for men and 20 for women, and to defer childbirth until at least their mid-20’s. For urban couples, obtaining permission to have a second child is very difficult.

China’s population control policy relies on education, propaganda, and economic incentives, as well as more coercive measures, including psychological pressure and severe economic penalties. Rewards for couples who adhere to the policy include monthly stipends and preferential medical, food, and educational benefits. Disciplinary measures against those who violate the policy often include stiff fines, withholding of social services, demotion, and other administrative punishments. In at least a few cases, people have been fired from their jobs (a very serious penalty in China, affecting housing, pension and other social benefits) for refusing to terminate unauthorized pregnancies.

Physical compulsion to submit to abortion or sterilization is not authorized, but continues to occur as officials strive to meet population targets. Reports of forced abortions and sterilizations continue, though well below the levels of the early 1980’s. While recognizing that abuses occur, officials maintain that China does not condone forced abortion or sterilization, and that abuses by local officials are punished. They admit, however, that punishment is rare and have yet to provide documentation of any punishments.

Enforcement of the family planning policy has been inconsistent and varies widely from place to place and from year to year. The 1990 census data indicate that the average number of children per family (2.3) and the population growth rate (1.5 percent) remain significantly higher than would be produced by successful enforcement of official policy. In many areas, couples apparently are able to have several children without incurring any penalty, while in other areas enforcement has been more stringent. Local officials have great discretion in how, and how strictly, the policy is implemented. Because penalties for excess births can be levied against local officials and the women’s work units, many individuals are personally affected, providing an additional potential source of pressure. [Emphasis added.]

The Facts

The Refugee Division neither made nor implied any adverse finding as to the credibility of any of the evidence. We are presently concerned only with the enforcement of the policy by local authorities requiring involuntary sterilization. The essential facts are:

1. The appellant and his wife were faced with the choice of which of them would undergo involuntary sterilization.

2. The appellant elected to be sterilized instead of his wife and left China before the sterilization was carried out.

3. The appellant fears that if he returns to China he will be forcibly sterilized and is, for that reason, unwilling to avail himself of the protection of China, his country of nationality.

4. Enforcement of its population control policy by involuntary sterilization is not authorized by the Government of China.

5. Local authorities have great discretion in how the policy is enforced and may be penalized if their quotas are not met.

6. The Government of China recognizes that some local authorities resort to involuntary sterilization as a means of enforcing the policy.

7. The Government of China says that it punishes local authorities who resort to involuntary sterilization, admits that such punishment is rare, and has yet to provide documentation of any such punishment.

The Refugee Division’s Decision

The entirety of the decision below dealing with the appellant’s fear of sterilization follows:[17]

The claimant alleged a fear of persecution by being forced to undergo sterilization. This panel does not find sterilization in itself to be a form of persecution for a Convention reason but rather we accept it as a measure on the part of the PRC government to implement a family planning policy applicable to all of its citizens. Furthermore, the claimant testified that he does not wish to have any more children and no evidence was adduced to suggest that the claimant would be physically abused during the sterilization process. According to all the above, this panel does not find the claimant’s fear of persecution in the form of a forced sterilization to be well-founded.

The suggestion that evidence is necessary to establish that forced sterilization entails physical abuse calls into question the panel’s understanding of what is meant by “physical abuse” in any ordinary sense of the term.

The appellant’s testimony that he did not wish to have any more children and his further, unremarked, statement that

… it would not [be] absolutely necessary for me to take a sterilization operation

do not, in my view, support a conclusion that his fear of persecution in the form of a forced sterilization is not well-founded. It is his opinion based on his personal intention but there is no suggestion that it is an opinion shared by the local authorities or that he thought they shared it. Quite the contrary. The import of the evidence is that, from their point of view, fulfilment of his commitment to undergo sterilization would only be unnecessary if his wife were to be sterilized instead.

The validity of the tribunal’s finding that “sterilization [is not] a form of persecution for a Convention reason” depends entirely on the qualification “for a Convention reason”. That is the issue.

The Cheung Decision

In Cheung, the Refugee Division had accepted that the claimant “would be sterilized if she were forced to return to China”. There was no such acceptance here. In finding that her forced sterilization would be persecution, Linden J.A., speaking for the Court, said [at pages 323-324]:

Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in pursuit of a legitimate end is still brutality.

The forced sterilization of a woman is a fundamental violation of basic human rights. It violates Articles 3 and 5 of the United Nations Universal Declaration of Human Rights….[18]

Article 3

Everyone has the right to life, liberty and security of the person.

…

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

As to membership in a particular social group, it was held [at page 322]:

It is clear that women in China who have [more than][19] one child and are faced with forced sterilization satisfy enough of the above criteria[20] to be considered a particular social group. These people comprise a group sharing similar social status and hold a similar interest which is not held by their government. They have certain basic characteristics in common. All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman’s reproductive liberty is a basic right “ran[king] high in our scale of values.”

The conclusion in Cheung was that forced sterilization as practised in China fell within the persecution contemplated by the Convention refugee definition on the same basis that treatment unsanctioned by a national government had been so found in Surujpal v. Minister of Employment and Immigration[21] and Zalzali v. Canada (Minister of Employment and Immigration).[22]

Persecution and State Complicity

In E. (Mrs.) v. Eve[23] the Supreme Court characterized non-therapeutic sterilization without consent as a “grave intrusion on a person’s rights” and an “irreversible and serious intrusion on the basic rights of the individual”. That case concerned a woman. There is no distinction between the sexes that would lead to the characterization of the forced sterilization of a man in different terms.

Persecution transcends discrimination. Whatever view may be taken of the other sanctions by which the population control policy is enforced, involuntary sterilization—physical abuse that is an irreversible and serious intrusion on the basic rights of the individual—is persecution.

The very recent decision of the Supreme Court of Canada in Canada (Attorney General) v. Ward[24] has dealt with state complicity in a context that is not the situation here: the impotence of the state to protect its nationals from persecution by others. The basis upon which state complicity was found to exist in Cheung remains valid. The evidence does not lead to the conclusion that the central government of China is unable to protect its citizens from the excesses of the local authorities. Rather, it indicates a central government which, by its passivity, is either tolerating or abetting the enforcement of the population control policy by a means which it officially disavows.

In my opinion, a well-founded fear of forced sterilization is a well-founded fear of persecution and, on the evidence, the appellant’s fear of forced sterilization were he to return to China is subjectively and objectively well-founded.

Particular Social Group

The submission of the appellant’s counsel that the social group in issue is “parents in China with more than one child who do not agree with the Government’s sterilization policy” is totally unacceptable. To so define the group is simply to return the issue to realm of political opinion.

The particular social group identified in Cheung [at page 322] was “women in China who have more than one child, and are faced with forced sterilization because of this”. I see no meaningful distinction between that and “married men in China whose wives are faced with forced sterilization because they have had more than one child and who agree to be sterilized in place of the forced sterilization of their wives”.

Among the issues addressed by La Forest J., delivering the judgment of the Court in Ward, was [at page 708]:

(a) What is the meaning of the phrase, “particular social group”, as used in the definition of Convention refugee in s. 2(1) of the Immigration Act, 1976.

The relevant discussion of that is to be found at pages 728-739 of the decision. The Supreme Court’s conclusions include:

The manner in which groups are distinguished for the purposes of discrimination law can thus appropriately be imported into the area of refugee law.

…

The “analogous grounds” approach to s. 15 of the Charter parallels that of the Federal Court of Appeal in its recent judgments, as well as the United States Immigration Board of Appeals,[25] with respect to the definition of “particular social group” in the distillation of and extrapolation from the common thread running through the enumerated heads.

These types of tests appear to be appropriate to us.

…

The meaning assigned to “particular social group” in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, supra, Cheung, and Matter of Acosta, provide a good working rule to achieve this result. They identify three possible categories:

(1) groups defined by an innate or unchangeable characteristic;

(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

(3) groups associated by a former voluntary status, unalterable due to its historic permanence.

The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one’s past is an immutable part of the person.

It is to be observed that the examples are stated in terms of individuals, not organized groups.

Subsection 15(1) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] provides:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The analogous grounds approach has most recently been restated by Lamer C.J., in R. v. Swain:[26]

The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This will focus largely on whether the law has drawn a distinction (intentional or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant’s s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the sections or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15—namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

Taking that approach to the refugee determination process, the resolution of whether what the claimant fears is persecution and whether that fear is well-founded would seem to subsume the first inquiry and the resulting impact of differential treatment. That is an inquiry common to the resolution of all refugee claims.

Cast in terms of the refugee determination process, what must next be decided is: (1) whether the reason for the persecution is membership in a particular social group and, if so, (2) whether that social group falls within one of the categories identified by Ward. In other words, is the personal characteristic shared by members of the group analogous to race, religion, nationality or political opinion in that it is either unchangeable because it is innate or a fact rendered permanent by history or, although changeable, so fundamental to their human dignity that they should not be forced to abandon it?

As to the second and third categories, I take the notion of “voluntary association” to be an antonym to the “innate or unchangeable characteristics” of the first, and not to imply that an organization has necessarily been joined or an association formed. That would appear to accord with the “normal” definition of the UNHCR Handbook.[27]

77. A “particular social group” normally comprises persons of similar background, habits or social status.

Furthermore, the concept of voluntary association of the second and third categories seems to me necessarily the same; the distinction is that the common personal characteristic that distinguishes the second subsists while that of the third, although past, remains its identifying characteristic because of its historic permanence.

In Ward, at page 731, La Forest J., discussed the reason “particular social group” had been included in the Convention refugee definition. From the historical evidence, he concluded:

The fact that this class was added to enlarge the range of cases falling within the definition of “refugee” therein was initially a Cold War reaction aimed at ensuring a haven for capitalists fleeing the persecution they encountered in Eastern Bloc regimes after World War II …. The persecution in the “Cold War cases” was imposed upon the capitalists not because of their contemporaneous activities but because of their past status as ascribed to them by the Communist leaders …. The scope of “particular social group”, however, was not meant to be limited to that specific historical circumstance and no one has ever so contended.

It was the shared characteristic of their having been capitalists, not a past formal association or membership in an organization, that identified former capitalists behind the Iron Curtain as within the third category.

I have been unable to conceive of a reason, fundamental to human dignity, for persons to associate formally which would not result in a membership that was either religious or expressive of political opinion and, thus, obviate the need for recourse to the particular social group class of the definition. In my opinion, it is the shared reason fundamental to their human dignity that defines and constitutes the second group. A conscious act of association is not an essential element.

In Ward, at page 736, La Forest J., quoted the passage from the judgment in Cheung which I have already recited, but repeat in part:

All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a woman’s reproductive liberty is a basic right “ranking high in our scale of values”.

He described the approach taken by this Court in the following terms:

In this way, the focus of the inquiry was on the basic right of reproductive control.

Later, in a passage already quoted [at page 738], La Forest J., characterized the approach in Cheung, Mayers and Acosta as paralleling the “‘analogous grounds’ approach to s. 15 of the Charter”. Nothing in Cheung suggests that the claimant had adhered to any sort of a formal association.

Conclusion

I am in profound disagreement with the notion that the legitimacy of the population control policy excludes persecution in pursuit of it from the Convention refugee definition.

I understand Eve to be authority for and Ward, by its treatment of Cheung, to approve the proposition that the right to reproductive control is fundamental to human dignity. If it may be correctly said that, as in Ward, this appellant is threatened by persecution for what he (and his wife) did, not for what they were, what they and each of them, did—exercise a fundamental human right to reproductive control—is very different in quality to what Ward had done and identical to what Ms. Cheung (and her husband) had done.

There are differences between this case and Cheung but I do not think that the cases are distinguished by them. There, the claimant was a woman; here, it is a man. The basic human right of reproductive control is not the right of women alone. There, it was found that she would be forcibly sterilized if returned to China; that disposed of the question whether her fear of sterilization was well founded. Here, there was no such finding but persecution need not be certain for the fear of it to be well-founded. It is enough that there be a serious possibility of persecution.[28] That is the case here; there is a serious possibility that this appellant will be forcibly sterilized if returned to China. In Cheung, the sanction was to be imposed on the mother of the child whose birth had violated the population control policy; here, the father had elected to be sterilized himself rather than have his wife forcibly sterilized.

In my opinion, this case is not distinguishable from Cheung and nothing in Ward casts any doubt on the correctness of the Cheung decision. Quite the contrary.

The authorities as to the circumstances in which this Court may properly depart from its previous decisions were extensively surveyed in reasons for judgment rendered in Minister of Employment and Immigration v. Widmont.[29] They are encapsulated in the following quotation from a decision of Lord Diplock:[30]

The Court of Appeal is bound to follow its own decisions and those of courts of co-ordinate jurisdiction, and the “full” court is in the same position in this respect as a division of the court consisting of three members. The only exceptions to this rule are:— (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; (3) the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.

In my opinion, none of those exceptions exist here.

I would allow the appeal, set aside the decision of the Refugee Division and, pursuant to subparagraph 52(c)(i) of the Federal Court Act [R.S.C., 1985, c. F-7], declare the appellant to be a Convention refugee.

* * *

The following are the reasons for judgment rendered in English by

Desjardins J.A.: The appellant, who claims refugee status on the basis of membership in a particular social group and of political opinion rests his case on the decision of this Court in Cheung v. Canada (Minister of Employment and Immigration).[31] He claims a well-founded fear of persecution on account of the fact that, a short while before fleeing China, he pledged that he would undergo forced sterilization. Had he not volunteered to do so, his wife would have had to undergo that operation since they constitute a couple with more than one child and are thus in contravention of Chinese government policy.

A description of the Chinese policy on population control is contained in a document filed with the Board entitled Slaughter of the Innocents: Coercive Birth Control in China and written by John S. Aird. It echoes the fears expressed in China about the country’s ability to raise living standards and even to feed its population unless goals set by the Government are met.[32] The Country Reports on Human Rights Practices for 1990 describes various enforcement measures which are carried out in the pursuit of the one-child policy:[33]

China’s population control policy relies on education, propaganda, and economic incentives, as well as more coercive measures, including psychological pressure and severe economic penalties. Rewards for couples who adhere to the policy include monthly stipends and preferential medical, food, and educational benefits. Disciplinary measures against those who violate the policy often include stiff fines, withholding of social services, demotion, and other administrative punishments. In at least a few cases, people have been fired from their jobs (a very serious penalty in China, affecting housing, pension, and other social benefits) for refusing to terminate unauthorized pregnancies.

…

Physical compulsion to submit to abortion or sterilization is not authorized, but continues to occur as officials strive to meet population targets. Reports of forced abortions and sterilizations continue, though well below the levels of the early 1980’s. While recognizing that abuses occur, officials maintain that China does not condone forced abortion or sterilization, and that abuses by local officials are punished. They admit, however, that punishment is rare and have yet to provide documentation of any punishments.

Enforcement of the family planning policy has been inconsistent and varies widely from place to place and from year to year. The 1990 census data indicate that the average number of children per family (2.3) and the population growth rate (1.5 percent) remain significantly higher than would be produced by successful enforcement of official policy. In many areas, couples apparently are able to have several children without incurring any penalty, while in other areas enforcement has been more stringent. Local officials have great discretion in how, and how strictly, the policy is implemented. Because penalties for excess births can be levied against local officials and the women’s work units, many individuals are personally affected, providing an additional potential source of pressure.

Female infanticide persists in some impoverished rural areas. Insistence that local units meet population goals has contributed to the persistence of this traditional practice, generally by parents who hope to have more sons without incurring official punishment. The Government strongly opposes infanticide and has prosecuted offenders, but has been unable to eradicate the practice.

Sterilization stands therefore as a measure carried out by some local authorities. It is not authorized by the central government but remains largely unpunished.

My two colleagues have quoted the evidence at length and have drawn opposite conclusions as to whether, on the facts, the claimant has made his case with regard to his well-founded fear of persecution.

As noted by Heald J.A., the Board made no express finding with respect to whether the appellant, if returned to China, would face a reasonable chance of forced sterilization. Although I do not find the appellant’s testimony, nor the evidence, to be free from ambiguity, I do not plan to decide this case on the basis of the facts alone. Highly complex issues are raised with regard to the meaning of the terms “particular social group”, “political opinion” and “persecution” in the definition of “Convention refugee” found in paragraph 2(1) of the Immigration Act.[34] These ought to be addressed as it would serve no purpose to leave the matter to later disposition.

“Particular Social Group”

The Supreme Court of Canada in Canada (Attorney General) v. Ward,[35] in reasons for judgment delivered by La Forest J., has given us a strong lead with regard to the meaning and scope of the term “particular social group”.

Considering that the definition of “Convention refugee” in the Immigration Act largely originates from the 1951 United Nations Convention Relating to the Status of Refugees [[1969] Can. T.S. No. 6] and its 1967 Protocol [United Nations Protocol Relating to the Status of Refugees, [1969] Can. T. S. No. 29] (the “Convention”), the Court has referred to the Handbook on Procedures and Criteria for Determining Refugee Status (Office of the United Nations High Commissioner for Refugees)[36] (the “UNHCR Handbook”) which draws from the experience accumulated by the High Commissioner’s Office over a period of twenty-five years and which includes “the practices of States in regard to the determination of refugee status, exchanges of views between the Office and the competent authorities of Contracting States, and the literature devoted on the subject over this period.”[37]

The UNHCR Handbook deals with the term “membership in a particular social group” in the following manner:[38]

77. A “particular social group” normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group’s loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government’s policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.

The Supreme Court of Canada in Ward has rejected Helton’s view which describes the “particular social group” category as one intended to cover “all the bases for and types of persecution which an imaginative despot might conjure up”.[39] It also rejected the view of Isi Foighel which it described as an interpretation which “essentially characterizes an association of people as a ‘particular social group’ merely by virtue of their common victimization as the objects of persecution.”[40]

It has endorsed the formulation suggested by counsel for the applicant in the case of Canada (Minister of Employment and Immigration) v. Mayers,[41] which served as a guideline for interpretation in Cheung v. Canada (Minister of Employment and Immigration).[42] The formulation is the following:

… a particular social group means (1) a natural or non-natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness and solidarity or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it.

In what appears to be the gist of its reasoning as to what constitutes a “particular social group”, the Supreme Court of Canada has stated:[43]

These types of test appear to be appropriate to us. Canada’s obligation to offer a haven to those fleeing their homelands is not unlimited. Foreign governments should be accorded leeway in their definition of what constitutes anti-social behaviour of their nationals. Canada should not overstep its role in the international sphere by having its responsibility engaged whenever any group is targeted. Surely there are some groups, the affiliation in which is not so important to the individual that it would be more appropriate to have the person dissociate him- or herself from it before Canada’s responsibility should be engaged. Perhaps the most simplified way to draw the distinction is by opposing that which one is against that which one does, at a particular time. For example, one could consider the facts in Matter of Acosta, in which the claimant was targeted because he was a member of a taxi driver cooperative. Assuming no issues of political opinion or the right to earn some basic living are involved, the claimant was targeted for what he was doing and not for what he was in an immutable or fundamental way.

The meaning assigned to “particular social group” in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung, and Matter of Acosta, provide a good working rule to achieve this result. They identify three possible categories:

(1) groups defined by an innate or unchangeable characteristic;

(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

(3) groups associated by a former voluntary status, unalterable due to its historical permanence.

The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one’s past is an immutable part of the person.

There is no voluntary status present in the case at bar. Therefore, if the appellant falls into one of the three branches of the definition mentioned by La Forest J., it would be on account of the first branch, namely a group “defined by an innate or unchangeable characteristic”. The term “particular social group”, La Forest J. has also written, excludes “groups defined by a characteristic which is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights”.[44] What links members of the group together must therefore be so fundamental that it cannot be changed. If it were to be changed, it would destroy that person as a person. Disassociation of a person from his or her group would therefore be unacceptable.

The “innate or unchangeable characteristic” referred to as the hallmark of a particular social group, under the first branch of the definition, is to be distinguished from the basic human right which this group (which is not a voluntary association as in the second and third branch of the definition) might defend. The innate characteristic must be so strong a factor that it makes a group of individuals what they are (i.e., gender, linguistic background, sexual orientation). It must exist independently of what they fight for. A violation of a basic human right directed to a group of people does not, by itself, create a “particular social group”.

This “innate or unchangeable characteristic” is an internal factor in the determination of the group. The Court has also dealt with the persecutor’s perception of the social group, which is an external factor in the cognizability of the group, when it stated that “[t]he examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution”.[45] As I read it, the internal characteristics must exist independently of the fact of persecution but, nevertheless, the characteristics must play a significant role in the persecution. The persecution must be feared, or exist, on account of the characteristics.

The appellant, in the case at bar, is one of a number of persons who, individually, has resisted the one-child policy and, as a consequence, he, like the others of his category, faces the same general sanction, namely forced sterilization.

I do not find that this group, whose basic human rights are threatened, is affiliated in a fundamental way so as to qualify as a “particular social group”.

There is no question that by refusing to be sterilized against his will, the appellant is claiming a basic human right[46] characterized by La Forest J. in Ward as “the basic right of reproductive control”.[47]

Reproductive control or reproductive freedom is the right to make reproductive choices. It appears to be a largely undefined word with multiple facets.[48]In the case at bar, it represents, on one hand, the right to refrain from being sterilized and, on the other, the right to bear children, including more than one child.

In E. (Mrs.) v. Eve,[49] the Supreme Court of Canada held that the parens patriae jurisdiction held by superior courts did not extend so as to order non-therapeutic abortion on a mentally incompetent adult. Although not a Charter case, words such as “grave intrusion on a person’s rights”[50] and “basic rights of the individual”[51] were used by the Court in dealing with sterilization. Forced sterilization, therefore, stands in violation of a basic human right.

With regard to childbearing, the Court, in Eve, stated at one point:[52]

The importance of maintaining the physical integrity of a human being ranks high in our scale of values, particularly as it affects the privilege of giving life. [Emphasis added.]

The Eve case refers therefore to childbearing as a privilege but does not develop this concept any further.

The procedure which is carried out in China by some local authorities is not absolute sterilization so as to prevent childbearing, but a measure of punishment for excess births, i.e., for birth of more than one child. That general policy has not been challenged before us and remains therefore legitimate.

Little guidance, which might assist in defining the parameters of the right to bear children, can be found in the Universal Declaration of Human Rights of 1948. It has even been suggested that the Chinese one-child policy may not run counter to the Universal Declaration of Human Rights since it may ensure “dignity” for the generations to come.[53]I find, moreover, little assistance from the International Covenant on Civil and Political Rights [[1976] Can. T.S. No. 47]. While the Covenant contains its own mechanisms of enforcement, no decision of the Human Rights Committee created under the Covenant has been brought to my attention.

I have taken notice of the Proclamation of Teheran (1968)[54] and of the 1974 World Population Plan of Action in Bucharest[55] but, still, the parameters of the right to bear children remain largely undefined both nationally and internationally.

The appellant is essentially targeted because of what he did, (i.e., he violated the one-child policy) and not because of what he is (i.e., a Chinese father). The reprimand, i.e., forced sterilization, is in violation of his basic human right, but this right is common to humanity, not common to his group. He objects, rightly so, to forced sterilization. But that is what he is fighting against. It cannot be an “innate” characteristic of his group.

The record, as it stands, suggests that the group of which the appellant claims to be a member is cognizable by the decision of local Chinese authorities who use forced sterilization as a means of enforcing a general government policy of controlling excess births to which individuals resisted. What links the group together is an external factor which, according to the decision of the Supreme Court of Canada in Ward, as I referred to earlier, is insufficient to meet the definition of the term “particular social group”, since the group of people cannot be defined “merely by virtue of their common victimization as the objects of persecution”.[56]

I conclude that there is no “particular social group” to which the claimant belongs in an innate or unchangeable way which provides the necessary ground for his claim.

Is there any basis for a claim on the ground of political opinion?

The Supreme Court of Canada in Ward has indicated its preference for the following interpretation of political opinion, which embraces:

… any opinion on any matter in which the machinery of state, government, and policy may be engaged….

It has added two refinements to this definition, only one of which is of concern to us, namely that the political opinion at issue need not have been expressed outright. The Court then continued:

In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant’s well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.[57]

Ward teaches us that any opinion on any matter related to state affairs expressed by a claimant or imputed to him by any authority may constitute the basis for a claim under political opinion.

The appellant in the case at bar did not state his opposition either to the one-child policy or to sterilization. He breached what must be considered a legitimate policy, submitted himself to sterilization, although under pressure, and later fled to avoid sanction.

Could it be that the local authorities might impute to the appellant a political opinion on account of his resistance to a general government policy since the evidence shows that there is a continuing popular resistance to family planning in China and that birth rates soar the moment the pressure is eased?[58]

In view of the inference made by the Supreme Court of Canada in Ward that Ward’s refusal on moral grounds to execute orders from the Irish National Liberation Army became politically significant, must I consider here that the appellant’s action, motivated in defence of his basic human rights, may be viewed by the Chinese local authorities as a gesture of defiance to the national authority, particularly since an authoritarian form of government is in place?

I entertain grave doubt that I can properly make such an inference in the absence of specific evidence to this effect and considering that the local authorities themselves, in imposing sterilization, are not acting with the full recognition of the state, although such tacit recognition might exist.

However, I would rather not decide this case on the sole basis of an absence of evidence with regard to political opinion.

Since the claimant objects to the means employed by some local authorities in China to enforce a general government policy, I must ask two questions. First, does forced sterilization as a measure of population control amount to “persecution” under the Convention and the Immigration Act? Second, what is the scope of the Convention?

The Notion of “Persecution”

The scope of the Convention Relating to the Status of Refugees

In Rajudeen v. Minister of Employment and Immigration, this Court stated:[59]

The definition of Convention refugee in the Immigration Act does not include a definition of “persecution”. Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines “persecute” as:

“To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship.”

The Shorter Oxford English Dictionary contains, inter alia, the following definitions of “persecution”:

“A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source.”

Torture, beating, rape, are prime examples of “persecution” but there are, presumably, a great many others. It has been suggested, for instance, that denial of famine relief in anti-government areas[60] “may come within that definition. The use of chemical warfare is another.[61] “Persecution” under the Convention unquestionably covers treatments which abhor the human mind to the point that it would be unheard of to consider that such treatments could be voluntarily requested. If evidence were to be brought that someone has “acquiesced” to torture, beating and rape, for instance, there would be an immediate and serious challenge that such acquiescence was not given in a free and voluntary manner or in full recognition of basic human rights.

The treatment, in the case at bar, relates to forced sterilization. The record is silent as to the medical procedure followed. I must assume, therefore, that it is carried out through a normal procedure currently in use by those who voluntarily opt for this procedure elsewhere, including this country. What is objected to is the absence of consent.

The legitimacy of the Chinese government’s population control policy is not in question. Therefore, as a general proposition, it cannot be said that when a foreign government employs means that violate basic human rights, as known in Canada, so as to ensure the respect of a valid social objective, such means amount to “persecution” under the Convention. If so, those who face capital punishment as a consequence of a breach of a valid and legitimate piece of legislation would automatically become refugees under the Convention. This would be a startling proposition since capital punishment is still currently used in a number of democratic states as a punishment for serious crimes.[62]

All relevant circumstances must therefore be considered.

The definition of “Convention refugee” under the Immigration Act emanates from a treaty.

Constitutional documents such as the Canadian Charter of Rights and Freedoms are to be given a wide and generous interpretation in a broad perspective.[63]

Treaties stand by different rules.

G. G. Fitzmaurice[64] has summed up the different approaches to the interpretation of treaties:

There are today three main schools of thought on the subject, which could conveniently be called the ‘intentions of the parties’ or ‘founding fathers’ school; the ‘textual’ or ‘ordinary meaning of the words’ school; and the ‘teleological’ or ‘aims and objects’ school. The ideas of these three schools are not necessarily exclusive of one another, and theories of treaty interpretation can be constructed (and are indeed normally held) compounded of all three. However, each tends to confer the primacy on one particular aspect of treaty interpretation, if not to the exclusion, certainly to the subordination of the others. Each, in any case, employs a different approach. For the ‘intentions’ school, the prime, indeed the only legitimate, object is to ascertain and give effect to the intentions, or presumed intentions, of the parties: the approach is therefore to discover what these were, or must be taken to have been. For the ‘meaning of the text’ school, the prime object is to establish what the text means according to the ordinary or apparent signification of its terms: the approach is therefore through the study and analysis of the text. For the ‘aims and objects’ school, it is the general purpose of the treaty itself that counts, considered to some extent as having, or as having come to have, an existence of its own, independent of the original intentions of the framers. The main object is to establish this general purpose, and construe the particular clauses in the light of it: hence it is such matters as the general tenor and atmosphere of the treaty, the circumstances in which it was made, the place it has come to have in international life, which for this school indicate the approach to interpretation. It should be added that this last, the teleological, approach has its sphere of operation almost entirely in the field of general multilateral conventions, particularly those of the social, humanitarian, and law-making type.

He adds in a footnote:

It may be useful to state briefly the main drawback of each method, if employed in isolation or pushed to an extreme. In the case of the ‘intentions’ method, it is the element of unreality or fictitiousness frequently involved. There are so many cases in which the dispute has arisen precisely because the parties had no intentions on the point, or none that were genuinely common. To make the issue dependent on them involves either an abortive search or an artificial construction that does not in fact represent their intentions. The ‘textual’ method suffers from the subjective elements involved in the notions of ‘clear’ or ‘ordinary’ meaning, which may be differently understood and applied according to the point of view of the individual judge. There may also be cases where the parties intended a term to be understood in a specialized sense, different from its ordinary one, but failed to make this clear on the face of the text. The teleological method, finally, is always in danger of ‘spilling over’ into judicial legislation: it may amount, not to interpreting but, in effect, to amending an instrument in order to make it conform better with what the judge regards as its true purposes.

It is very much an open question, in my view, whether persons subject to coercive population control techniques, such as forced sterilization used by states to achieve population control, are refugees under the Convention, particularly where the legitimacy of the government action is not challenged.[65]

Although such measures certainly foster great personal tragedies, I entertain grave doubts that the Convention can reasonably bear the interpretation the appellant is asking us to adopt in the circumstances of this case, however intrusive the measures applied may be.

In stating this proposition, I am not unmindful of what the Supreme Court of Canada has stated in Ward:

“Persecution”, for example, undefined in the Convention, has been ascribed the meaning of “sustained or systemic violation of basic human rights demonstrative of a failure of state protection”; see Hathaway, supra, at pp. 104-5. So too Goodwin-Gill, supra, at p. 38 observes that “comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights”.[66] [My emphasis.]

I sense, however, that the situation at stake falls beyond the scope of the Convention. Ideally, legitimate objectives should be pursued hand in hand by the government and its citizens. I would have thought, therefore, that the Convention was not meant to protect those who resist the realization of valid state objectives but, specifically, those who become victims by virtue of the pursuit of illegitimate goals by the state. The reality may, however, run a different course. Conflicts arise between citizens and their state, irrespective of the legitimacy of the objectives pursued; stringent measures are sometimes taken and abuses are committed.

Population control and reproductive rights are the subject of many international discussions and concerns with regard to human rights.[67] But it is not the role of judges to amend an international instrument on which their national legislation is based. An effort on the part of the international community may be required to relate the Convention to reproductive rights.

I conclude that, unless amended, the United Nations Convention Relating to the Status of Refugees would not cover violations of human rights imposed by local authorities in the pursuit of what the record shows is a legitimate state objective, namely, population control.

Conclusion

For all the above reasons, I would dismiss this appeal.

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