JINBIN CHEN Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2018 FC 608

Federal Court header and its coat of arms Date: 20180611 Docket: IMM-5181-17 Citation: 2018 FC 608 Ottawa, Ontario, June 11, 2018 PRESENT: The Honourable Mr. Justice Harrington BETWEEN:JINBIN CHENApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Chen, a Chinese national, arrived in Canada in December 2012. At that time, his wife, who was still in China, was pregnant withtheir second child.

He sought refugee status on the basis that he would be persecuted if returned to China for being in violation of its one-child policy. [2] This is a legacy claim which was only heard in October 2017. Although Mr. Chen’s wife did in fact give birth in May 2013, the one-child policy was rescinded in January 2016 and replaced by a new policy permitting married couples to have two children, and evenmore in some cases. [3] A panel of the Refugee Protection Division of the Immigration and Refugee Board of Canada determined that Mr.

Chen was not aConvention refugee within the meaning of the United Nations Convention or otherwise a person in need of Canada’s protection withinthe meaning of s 97 of the Immigration and Refugee Protection Act. This is a judicial review of that decision. [4] The panel framed the issue as follows: [para 9] Whether notwithstanding the change in law, as a person who had a second child prior to the change in China’s “one-child” policy, and as a person who was sought by the authorities for violating this policy, would the claimant … be at risk offorced sterilisation?

For the reasons that follow; the panel answers this question in the negative. [5] The panel determined Mr. Chen was not a refugee on two grounds. The first was that "“with the implementation of the new policy… the claimant’s violation of the former policy is now rendered moot”". The second ground was that in any event, he had not shown thathe would face a serious possibility of persecution; the burden, of course, being upon him. [6] I think the use of the word "“moot”" was misplaced.

If the case is moot, there would be no possibility of persecution. [7] Unfortunately, there is no evidence in the record as to how a repealed law is to be treated in China. Mr. Chen’s second child was bornin violation of China’s one-child policy. The question is whether Mr. Chen would be persecuted even to the extent of forced sterilisationwere he to be returned to China now. Chinese law is presumed to be the same as Canadian law. Under s 43 of our

Interpretation Act, onemay still be charged for an offence that occurred while the statute was still in force. Thus, in that sense, the claim is not moot. See Walker, Canadian Conflict of Laws, 6th ed (Toronto, Ont: LexisNexis), (loose-leaf revision 65-11/2017), ch 7 at 7.4 and the Mercury Bell v Amosin, (FCA), 27 DLR (4th) 641 (FCA). [8] Mr. Chen provided articles drawn from the internet which were published prior to the new policy coming into force. There wasspeculation that a person in Mr. Chen’s position would still be persecuted. However, the only internet

article produced after the newpolicy came into force is not helpful. It deals with the forced sterilisation of a Chinese man who had fathered four children, and furthernoted that the authorities were launching an investigation into the circumstances. [9] Absent evidence as to how violations under the old policy were now treated, the panel relied upon a British Home Office OperationalGuidance Note for China, which had been updated in December 2014. It was open to the panel to conclude that there was not a seriouspossibility that Mr.

Chen would be persecuted. [10] It was not unreasonable for the panel to conclude that Mr. Chen had not met his onus to establish on the balance of probabilitiesthat he faced a serious possibility of persecution, or that he would be in danger of being tortured, or face a risk to his life, or a risk ofcruel and unusual treatment or punishment as set forth in

section 97 of the Immigration and Refugee Protection Act. [11] Consequently, the application will be dismissed. There is no serious question of general importance to certify.

JUDGMENT in IMM-5181-17 For reasons given, this application for judicial review is dismissed. There is no general question of serious importance to certify. "Sean Harrington" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5181-17 STYLE OF CAUSE: JINBIN CHEN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: JUNE 7, 2018 JUDGMENT AND REASONS: HARRINGTON J. DATED: June 11, 2018 APPEARANCES : Stephanie Fung For The APPLICANT Stephen Jarvis Department of Justice FOR THE RESPONDENT SOLICITORS OF RECORD : Stephanie Fung Toronto, Ontario for the applicant Attorney General of Canada Toronto, Ontario For The Respondent