VB3-01766

VB3-01766

The RAD set aside the RPD's decision as to the adult appellants because the RPD gave inadequate reasons on whether Chinese authorities would prevent the appellants from pursuing ligation reversal or IVF and whether that interference would amount to persecution; on the record the RAD found on a balance of probabilities that Chinese authorities would not permit those reproductive options and that such interference would constitute persecution by reason of perceived political opinion and membership in a particular social group, with no state protection or internal flight alternative, and therefore the adult appellants are Convention refugees.

Citation
VB3-01766
Parties
Principal Appellant: XXXX XXXX; Associated Appellant (husband): XXXX XXXX; Minor Appellant: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
1 November 2013
Procedural Posture
Refugee Protection Appeal (refugee Appeal Division) / Decision on Appeal (rad Substituted Determination)
Outcome
Appeal allowed in part: adult appellants granted Convention refugee status; appeal dismissed for minor appellants
Legal Topics
Family Planning Policy, Tubal Ligation, In Vitro Fertilization, Persecution, Adequacy of Reasons, Standard of Review, Remedy Substitution Under S111 IRPA
Source Language
English
Immigration Refugee Law Administrative Law Human Rights (reproductive Rights) Family Planning Policy Tubal Ligation In Vitro Fertilization Persecution +3 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX

Associated Appellant (husband)

XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Protection Appeal (refugee Appeal Division) / Decision on Appeal (rad Substituted Determination)

Legal Issues

  1. 1 Whether the RPD provided adequate reasons for rejecting the appellants' claim
  2. 2 Whether denial or interference with access to reproductive treatments (ligation reversal or IVF) on return to China constitutes persecution under section 96 or serious risk under section 97 of IRPA
  3. 3 Whether the appellants' opposition or desire to pursue reproductive options amounts to a Convention ground (imputed political opinion or membership in a particular social group)

Ratio Decidendi

The RAD set aside the RPD's decision as to the adult appellants because the RPD gave inadequate reasons on whether Chinese authorities would prevent the appellants from pursuing ligation reversal or IVF and whether that interference would amount to persecution; on the record the RAD found on a balance of probabilities that Chinese authorities would not permit those reproductive options and that such interference would constitute persecution by reason of perceived political opinion and membership in a particular social group, with no state protection or internal flight alternative, and therefore the adult appellants are Convention refugees.

Court Disposition

Appeal allowed in part: adult appellants granted Convention refugee status; appeal dismissed for minor appellants

Orders

  • Set aside the Refugee Protection Division determination as to the adult appellants and substitute a determination that the adult appellants are Convention refugees pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act
  • Confirm the Refugee Protection Division determination as to the minor appellants that they are neither Convention refugees pursuant to section 96 nor persons in need of protection pursuant to section 97 of the Immigration and Refugee Protection Act