Monday, November 19, 2012

Huang—good faith in sur place claims

Huang v. Canada (Citizenship and Immigration), 2012 FC 205 (CanLII)

Judge: Justice Zinn; Date heard: December 1, 2011; Date decided: February 10, 2012;Counsel for Huang: Lindsey K. Weppler; Counsel for Minister: Judy Michaely; Place of Hearing: Toronto, Ontario.

The Applicants were a family consisting of a Chinese woman and her minor children. In February 2007, having become ill, the Applicant became involved in Christianity and began attending a house church. In August 2008, the Applicant went into hiding when she learned that the Public Security Bureau was coming for the congregation. Friends were arrested and the PSB came to her house. She engaged an agent to bring her and her children to Canada. She also claimed on the basis of fear of forcible sterilization, since she had two children.

Justice Zinn found that the RPD had erred in relying on a 2005 document that suggested sterilization was no longer used as punishment for violating family planning laws, when a more recent document (2010) discussed a sterilization campaign in the Applicant’s home region. As always, the RPD may rely on whatever evidence it chooses, but cannot disregard evidence which directly supports the claim without giving a valid reason for doing so (paras. 22-24).

The RPD also erred in finding that the Applicant did not have a sur place claim in Canada, as the RPD found she was practising Christianity in Canada to strengthen her refugee claim. Justice Zinn noted that there was no evidence that her current practise of Christianity was not genuine (paras. 25-32).

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