4.1    Draft Evasion/Military Desertion

4.2    Unlawful Departure/Stay Abroad

4.3    Iran's 'Dress Code'

        4.3.1    Fatin v INS
        4.3.2    Fisher v INS
        4.3.3    Namitabar v Canada (MEI)

4.4    China's One Child Family Policy: Forced Sterilization and Forced Abortion

         4.4.1    The US Case Law and Administrative Measures
         4.4.2    The Canadian Cases

4.5    Conclusions regarding the Scope and Application of the Political Offender Analogy in Refugee Law

Extending the Political Offense Analogy in Refugee Law

[119] Unlike in the preceding Chapter, the offenses discussed herein are not strictly analogous to those giving rise to state obligations under the law of extradition. Primarily, this is because they do not meet the test of 'double criminality'. Double criminality refers to the requirement that the conduct upon which an extradition request is based be criminal in both the requesting state and the host state.(266) As Gilbert explains succinctly:(267)

Although technical equivalence is not necessary,(268) the legitimacy of the requesting state's criminal law is judged, essentially, by reference to the domestic norms of the host state. This approach is consistent with the reciprocal nature of extradition law.(269) It also enables a state to ensure that its own nationals are not subject to extradition except for actions which would be considered criminal if they had taken place at home.

[120] This Chapter examines refugee claims based upon draft evasion/military desertion,(270) unlawful departure/stay abroad,(271) violation of the Iranian 'dress code'(272) and breach of the Chinese 'one-child family policy.(273) In my view, the common error made by decision-makers in these cases is a failure to explore sufficiently the political context in which the offense was (or will be) committed.(274) While the analogy between these claimants and political offenders is by no means a perfect one, analysis using extradition law principles to some extent assures that this vital exploration of context occurs. For example, does the offense in question challenge state authority? Indicators that the state views an offense as threatening include whether it is characterized as an act of disloyalty and whether it attracts disproportionate punishment. Similarly, would the claimant have been able to publicly disagree with the law or policy and seek to change it without risking serious harm?

4.1 Draft Evasion/Military Desertion

[121] Military offenses generally are not considered political for the purposes of extradition. Instead they constitute a distinct class of non-extraditable offenses.(275) Thus, pursuant to the IRO's Constitution, deserters, like political offenders, were neither excluded from, nor automatically included within, the Organisation's mandate.(276)

[122] It seems axiomatic that draft evasion and military desertion are perceived by states as a fundamental challenge to their authority. As Goodwin-Gill asserts:(277)

This position has not been embraced by decision-makers, however. Most decisions neither acknowledge, nor refute, the political nature of draft evasion and desertion, but focus instead on the fact that the laws punishing these acts do not discriminate on any of the grounds identified in the 1951 Convention.(278) For example, in Musial v Canada (MEI), Pratte JA declared:(279) [123] Even if a decision-maker accepts the objective political nature of draft evasion and military desertion, the question of the claimant's subjective motivation remains. It is not difficult to conceive of non-political objections to military service. The IRO, the UNHCR Handbook and the case law all agree that a general dislike of military service or fear of combat cannot found a refugee claim.(280) There is less consensus, however, with regard to whether draft evasion or desertion based on genuine political objections to military service (other than those which are strictly a matter of conscience)(281) may suffice.

[124] The IRO appears to have accepted that "[t]he fact of desertion may ... be good evidence of a valid objection on political grounds (unwillingness to fight for opposed regime) ..."(282) Similarly, paragraph 170 of the UNHCR Handbook states that refugee status may be warranted when "... a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience."(283) The Handbook's reference to both 'reasons of conscience' and 'genuine political convictions' suggests that each concept was intended to convey a distinct meaning.

[125] The notion of 'genuine political convictions' is further elaborated in paragraph 171 of the Handbook:(284)

This provision has been interpreted in a manner which strictly limits the general principle set out in paragraph 170. Reluctance to be associated with a conflict condemned by the international community has been treated, not as one justification for refusing military service, but as the only viable alternative to basing a claim on conscientious objection.(285) In my view, this is an unnecessarily restrictive interpretation of the Handbook provision. Also, by setting such a high standard, it foregoes any attempt to balance a state's legitimate (but not unlimited) right to require military service of its citizens with the individual's genuine political objections to such service. Where an individual has no effective means of expressing her disagreement with government policy or effecting change, other than by refusing to serve, refugee status may be warranted.(286)

4.2 Unlawful Departure/Stay Abroad

[126] Severe penalization of unlawful departure and stay abroad is a practice largely associated with Eastern Europe(287) during the Cold War; however, states such as China and Iran continue to strictly regulate their citizens' right to travel abroad. Stringent exist laws enforce citizens' loyalty, not only to their state, but to the governing regime. Moreover, states which severely penalize unlawful departure and stay abroad tend to characterize these offenses as political, ie, treason or defection.(288)

[127] Even if a decision-maker recognises the objective political nature of the unlawful departure or stay abroad provisions in question, the issue of the claimant's subjective motivation remains. It is not difficult to portray a claimant's decision to breach an exit law as mere opportunism, or as an act done solely to secure refugee status.(289)

[128] In my view, provided the claimant's motivation in violating the law is genuine (ie, not mere opportunism), the Convention reason requirement is satisfied by the political nature of the offense. In practice, this approach differs little from that advocated by the UNHCR Handbook which accepts that the Convention reason requirement may be satisfied by reference to the claimant's motives for leaving or remaining outside of her country.(290)

4.3 Iran's 'Dress Code'(291)

[129] Two cases, Fatin v INS(292) and Fisher v INS(293) represent the somewhat ambiguous state of the US jurisprudence regarding refugee claims based on violation of Iran's dress code. In the Canadian context, I will discuss Namitabar v Canada (MEI)(294) and the guidelines regarding gender-related persecution.(295)

4.3.1 Fatin v INS

[130] Fatin's claim was based solely on circumstances which had arisen since her entry into the US (essentially, the ousting of the Shah and rise to power of Khomeni).(296) Also, on several occasions the Court stressed that it was entitled only to refer to the administrative record, and not to subsequently presented information concerning the treatment of women in Iran.(297) It is not surprising, therefore, that the decision in Fatin displays little appreciation of the political ramifications of non-compliance with the dress code in Iran.(298) As Greatbach observes, the chador took on ideological proportions from the outset of the Iranian revolution:(299)

[131] The Third Circuit held that Fatin had failed to demonstrate that, due to her political views, complying with Iran's gender-specific laws, including the dress code, would constitute persecution;(300) or in the alternative, that for reasons of conscience she would choose to violate the law despite the consequences.(301) In my view, the latter option is tantamount to requiring evidence of impending martyrdom. The former demands of the Court extraordinary insight into the temperament of the claimant, the depths of her political sentiments, and effects of compromising them daily. Yet the administrative record provides sparse context in which to decide this issue. I would assert, moreover, that the Court's reliance on an absolute dichotomy between compliance and violation is not grounded in reality. Breaching the dress code in a relatively inconspicuous manner continues to be a way in which women can assert their opposition to a regime which simply does not tolerate dissent.

4.3.2 Fisher v INS

[132] The decision of the Ninth Circuit in Fisher v INS(302) devotes substantial energy to distinguishing the case before it from Fatin, asserting:(303)

'Voluntary' compliance is defined by the Court as that which avoids any sanction, while 'forced' compliance means conformity resulting from an encounter with the authorities.(304) It held that it was unnecessary for Fisher to demonstrate future non-compliance with Iran's gender specific laws.(305) Rather, the Court asserted:(306) One is driven to question whether the only factual distinction between the two cases is that Fisher had experienced punishment for having breached the dress code prior to leaving Iran, whereas Fatin had not. Presumably, Fisher's prior transgressions were persuasive evidence of the depths of her political opposition to the Khomeni regime.

[133] In Fisher, the question of whether the claimant faced persecution 'on account of' her religious beliefs was remanded for consideration by the BIA in accordance with the principles articulated by the US Supreme Court in Elias-Zacarias, 112 S.Ct. 812.(307) Nevertheless, the Ninth Court did suggest that this issue might be analyzed in the following terms:(308)

4.3.3 Namitabar v Canada (MEI)

[134] Like Fisher, Namitabar(309) concerned a claimant who had breached the dress code on prior occasions. In allowing the application for judicial review, Justice Tremblay-Lamer of the Canadian Federal Court (Trial Division) stressed the disproportionate punishment and lack of due process associated with the dress code's implementation.(310) This decision locates the claimant's violation of the dress code squarely within its political context as an expression of political dissidence which was, moreover, perceived as such by the governing regime:(311)

According to Justice Tremblay-Lamer, Namitabar's perceived opposition to the governing regime is sufficient to demonstrate that her fear of persecution is connected with her political opinion.(312) In other words, the claimant's motivation in violating the dress code was not considered.

[135] In extradition law terms, violation of the dress code represents a clear challenge to the authority of the state. Moreover, the excessive punishment imposed is additional evidence that offenders are not regarded as ordinary criminals. The case law discussed above appears to recognise the objective political nature of the dress code. However, as in the case of draft evasion and military desertion, decision-makers have little difficulty envisaging, and attributing to the claimant, a non-political motivation (ie, mere inadvertence) for having violated the law, and consequently, determining that the Convention reason requirement has not been met. A more appropriate approach is to focus on the role of the dress code in maintaining absolute state authority over women and perpetuating their relative powerlessness within Iranian society:(313)

Demonstrating the claimant's fundamental marginalization within her own state should not necessitate proving malicious intent on the part of the persecutor. The 'differential impact' analysis quoted above is consonant with restricting refugee status to persons whose disenfranchisement in their own state makes membership of a new community the appropriate remedy.

4.4 China's One Child Family Policy: Forced Sterilization and Forced Abortion(314)

[136] The exact parameters of the Chinese one child family policy remain hazy,(315) and moreover, implementation of the policy varies between and within provinces.(316) In particular, the responsibility of the central government for forced abortion and forced sterilization is a matter of controversy. There appears to be some consensus that while these measures may not be officially sanctioned, government policy perpetuates and tolerates their use.(317) Even where the state (defined for the moment as the Chinese central government) is not identified as the agent of persecution in claims based on the one child family policy, it is, at best, refusing to protect rather than unable to protect its citizens from this particular harm.(318)

[137] Arguably, implementation of China's population policy stretches the meaning of 'criminal prosecution' to its limits. However, in practice, the problems of reasoning encountered by decision-makers in this category of cases are very similar to those which arise in cases where 'traditional' criminal prosecution is involved.

[138] The question of refugee status predicated upon fear of forced abortion or sterilization for having violated the one child family policy has arisen in Canada, the United States, and New Zealand.(319) It seems to be generally accepted that both forced abortion and forced sterilization constitute 'persecution' or, in other words, a serious violation of the claimant's human rights.

139] There is little consensus, however, as to whether this persecution is 'for a Convention reason'. Defining those who breach or oppose the one child family policy and consequently face forced abortion or sterilization as members of a particular social group is an approach that has been utilized with varying degrees of success.(320) Arguably, the confused state of the case law relates more to the difficulties of interpreting and applying the phrase 'membership of a particular social group' than the complexities of the one child family policy. In discussing the case law, I will focus instead on whether violation of the Chinese population policy may be characterized as a 'political' offense and the consequences of such a breach constitute 'persecution on account of political opinion.'

4.4.1 The US Case Law and Administrative Measures

[140] The United States Board of Immigration Appeals (BIA) in Matter of Chang(321) held that implementation of the one child family policy, even to the extent that it includes involuntary sterilization, is not persecution for a Convention reason.(322) This decision prompted a number of administrative measures designed to counteract its effect.(323) Essentially, each sought to characterise refusal to comply with the Chinese population policy as an act of 'political dissent'.(324) For various reasons, none of these administrative directives currently has binding effect.(325)

In Guo Chun Di v Carroll,(326) Ellis DJ held that the BIA case law and the various guidelines, interim rules etc, amounted to "... an administrative cacophony undeserving of judicial deference"(327) and proceeded to consider the substance of Guo Chun Di's refugee claim. Referring to US constitutional case law, he asserted that "... it is beyond dispute that the expression of one's views regarding issues related to the right to procreate is 'political'" and went on to characterize the act of refusing to submit to the one child family policy as the expression of a political opinion:(328)

In my view, it is unfortunate that the decision does not discuss the political significance of the one child family policy in the Chinese context, relying instead upon the political nature of views regarding procreation in the United States.(329) Quite simply, the latter has little to do with the Chinese government's perception of the claimant's actions.

4.4.2 The Canadian Cases

[142] The importance of assessing whether an act is perceived as political within the context of the claimant's own community is highlighted by Justice Heald of the Canadian Federal Court of Appeal in Chan v Canada (MEI):(330)

Despite his explicit recognition of the importance of assessing the political nature of an act within the context of the claimant's own community, Justice Heald's decision contains little exploration of the role of the one child family policy in Chinese society.(331) He relies instead on the claimant's failure to give evidence demonstrating that his resistance to the policy was perceived as challenging the authority of those who enforced it(332) and concludes:(333) [143] In rejecting that the claimant's actions were political,(334) both Justice Heald and Justice Desjardins make reference to the fact that forced sterilization and forced abortion are not officially sanctioned by the Chinese central government.(335) Note, however, that neither decision goes on to deal with the case on the basis that the claimant faced extra-judicial penalties, which was the approach taken in Cheung v Canada (MEI), an earlier decision of the Canadian Federal Court.(336) In Cheung, Justice Linden observed that:(337) [144] Chan's appeal was dismissed by the Supreme Court of Canada.(338) Unfortunately, both the majority and dissenting decisions of the Supreme Court turn on whether the claimant's evidence before the Board had established that a well-founded fear of forced sterilization if returned to China.(339) Justice La Forest, dissenting, did suggest that the feared forced sterilization may have been a punitive measure tied to Chan's pro-democracy activities.(340) Other sources have documented the use of family planning regulations to target activists.(341)

[145] In my view, there is cogent evidence to suggest that the one child family policy meets the 'political when viewed in context' test posited by Justice Heald in Chan.(342) Population control is conceived of as integral to the future of the Chinese state.(343) It is implemented by mobilizing the entire population, not only to take responsibility for their own reproductive choices, but also for those of their family, friends, neighbours and co-workers.(344) This approach perpetuates forced abortion and sterilization, and in my view, the state should be held responsible for these consequences.(345) Opposition to the policy directly challenges the legitimacy of pervasive state control of procreation and state authority in general. Most importantly, the Chinese state itself characterizes such opposition as political.(346)

4.5 Conclusions regarding the Scope and Application of the Political Offender Analogy in Refugee Law

[146] In my view, each of the offenses discussed above is - when viewed in the context of the claimant's country of origin - a political offense. Military desertion and draft evasion are inherently tied to the foundation of state authority. Unlawful departure legislation, where the penalty is sufficiently serious to reach the level of persecution, is inevitably characterised by the regime in question as an offense of disloyalty to the state. Similarly, enforcement of Iran's dress code and China's one child family policy is perceived by the respective states as intimately related to the maintenance of state authority. As with the offenses discussed in Chapter three, general human rights conditions in the home state are relevant to whether the claimant is justified in violating the law because they often determine whether alternative means of effecting change are available.

[147] In the examples discussed, even where decision-makers accept the political nature of the claimant's offense, the question of subjective motivation tends to muddy the waters. The dress code cases, in particular, demonstrate the difficulties of reliance on the subjective motivation of the claimant to determine whether protection is warranted. In my view, extradition law's approach - a genuine political motive is not determinative of the political nature of the act in question, but its absence may be fatal to the claim for protection - would help to inject some conceptual clarity into the case law. With regard to laws which are political but not intrinsically discriminatory, such as the prohibition of draft evasion, motive may be a legitimate consideration in balancing state and individual rights. It is more difficult, however, to assert that a woman's motive in violating the dress code should be relevant because the law in question plays a central role in the state's oppression of women.

[148] The state's motivation in punishing the claimant also plays a role in the cases examined. Decision-makers frequently insist that the state acts simply to enforce the law, and therefore is not persecuting the claimant because of her political opinions. This approach ignores the role of the law in question in circumscribing the range of acceptable political opinions within the society. Violation of such a law is perceived by the state as clear manifestation of unacceptable political beliefs.

[149] More importantly, unbending insistence on unequivocal evidence of the persecutor's discriminatory intent is unrealistic and places too high a burden on claimants.(347) Because the persecutor in question - the state - is an institution rather than an individual it is difficult to ascribe to any of its actions a single purpose. Even if we surmount this obstacle, given that persecutory activities can affect a state's relations with other states and position within the international community, it is not uncommon for it to claim a benign or neutral motive in order to disguise persecution as legitimate state activity.

[150] In my view, where the claimant may be characterized as a political offender, it is likely that their claim satisfies the Convention reason requirement. Decision-makers need to be less mechanical in their interpretation of the definition and more willing to apply the general notion of non-discrimination that underlies the Convention grounds. Discrimination is not solely a question of the persecutor's intent but also of effect. The Refugee Convention exists not to punish states, but to protect individuals who are unable to secure their basic human rights and unable to effect change within their home state.

Endnotes - Chapter Four

266. See, La Forest, at 71.

267. Gilbert, at 54. See, also Van den Wijngaert, C, "Double Criminality as a Requirement to Jurisdiction" in Jareborg, N, Double Criminality; Studies in International Criminal Law (1989) 43.

268. See, La Forest, at 71:

269. Bassiouni MC and Wise, EM, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (1995) at 37: See, also, Shearer, at 137-138.

270. Infra, at paras [121-125].

271. Infra, at paras [126-128].

272. Infra, at paras [129-135].

273. Infra, at paras [136-145].

274. The Convention definition requires prospective risk of persecution, not past persecution. The alternative formulation "or will be" is used above because while the majority of prosecution/persecution cases involve situations where the claimant has committed an offense and fears the consequences, it is not inconceivable that a claimant may argue that she will commit an offense in the future if returned to her country of origin. This argument could arise, for example, where the claimant asserts that she will be compelled to violate the law because of her political or religious beliefs (see, Fatin v INS, infra, at paras [130 & 131].

275. Grahl-Madsen, (1966), at 81, does suggest, however, that draft evaders may be regarded as political offenders.

276. See, supra, note 29.

277. Goodwin-Gill, (1983) at 34-35.

278. Similarly, decision-makers will often assert that the claimant has failed to demonstrate that the persecutor's intent is to punish her because of her political opinions. Von Sternberg argues persuasively that such an approach is:

Von Sternberg, MR, "Political Asylum and the Law of Internal Armed Conflict: Refugee Status, Human Rights and Humanitarian Law Concerns" (1993) (5(2) International Journal of Refugee Law 152, at 180.

279. Musial v Canada (MEI) [1982] 1 FC 290 (FCA). This position has been modified by the Federal Court of Appeal in Zolfagharkhani v Canada [1993] 3 FC 540 at 549 (per MacGuigan JA):

280. IRO, Manual for Eligibility Officers, supra, note 27, at 13: "... desertion merely from dislike of the rigours of military life will not provide grounds for valid objection." UNHCR Handbook, supra, note 130, at paragraph 168: "[a] person is clearly not a refugee if his only reason for desertion or draft evasion is his dislike of military service or his fear of combat."

281. The substantial body of case law dealing with refugee claims based on conscientious objection will not be discussed in this dissertation. I would suggest that the relationship between conscientious objectors and political offenders may be characterised as follows: conscientious objectors are a special category of political offenders that the international community through international human rights law has chosen to recognise explicitly.

282. IRO, Manual for Eligibility Officers, supra, note 27, at 13. Thus, Grahl-Madsen, (1966), at 81, asserts that:

283. Supra, note 125, at paragraph 170.

284. Supra, note 125, at paragraph 171.

285. See, for example, the jurisprudence discussed in Musalo, K, "Swords into Ploughshares: Why the United States Should Provide Refuge to Young Men who Refuse to Bear Arms for Reasons of Conscience" (1989) 26(4) San Diego Law Review 849, 857. For an example of a decision applying paragraph 171, see, Ciric v Canada (MEI) [1994] 2 FC 65, where the Trial Division held that the appellants' avoidance of military service in the Serbian-Yugoslav army was justified because the Yugoslav conflict was condemned by the world community. Although Ciric was explicitly decided on this basis, it is interesting to note that the claimants' express reasons for evading military service were based primarily on who they would be required to right, not the way in which the conflict was being conducted.

286. Grahl-Madsen, (1966), at 250-251 provides the following illustration:

287. See, Goodwin-Gill, (1983), at 31 note 48.

288. Clearly, there are parallels to the Kolczynski case discussed, supra, at paras [73-75].

289. See, for example, Valentin v Canada (MEI) [1991] 3 FC 390, at 395 (FCA):

290. Paragraph 61 of the UNHCR Handbook, supra, note 125, states: The Canadian Federal Court of Appeal in Valentin v Canada (MEI), supra, note 289, at 396, rejected this approach, asserting that even where the claimant's departure is politically motivated "... the direct relationship that is required between the sentence incurred and imposed and the offender's political opinion does not exist."

291. Iran's strict regulation of dress is not unique among Islamic countries.

292. 12 F.3d 1233 (3rd Cir. 1993).

293. 37 F.3d 1371 (9th Cir. 1994).

294. (1993) 78 FTR 1 (FCTD).

295. Canadian Immigration and Refugee Board, "Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution" (March 9, 1993). Hereinafter cited as the "Canadian Gender Guidelines".

296. Such claims are termed 'refugee sur place'.

297. Fatin, supra, note 292, at 1241 and 1242-1243. Moreover, the Court observed that: "... the evidence in the administrative record regarding the way in which women in Iran are generally treated is quite sparse" (at 1241); and "... the administrative record does not establish that Iranian feminists are generally subject to treatment so harsh that it may be accurately described as 'persecution'."(at 1242)

298. See, for example, the following passage, (ibid, at 1242):

299. Greatbach, J, "The Gender Difference: Feminist Critiques of Refugee Discourse" (1989) 1(4) IJRL 518, 521. See, also, Zolan, AJ, "The Effect of Islamization on the Legal and Social Status of Women in Iran", (1987) 7 Boston College Third World Law Journal 183.

300. Fatin, supra, note 292, at 1242:

301. Ibid, at 1243: 302. 37 F.3d 1371 (9th Cir. 1994).

303. Ibid, at 1381.

304. Ibid, at 1381, footnote 7.

305. Ibid, at 1383:

306. Ibid, at 1381. Note, similarly, that the United States Immigration and Nationality Service, "Memorandum: Considerations for Asylum Officers Adjudicating Asylum Claims from Women" (May 26, 1995), at 9, discusses the dress code cases under the heading: "Violation of Fundamental Beliefs as Persecution".

307. Ibid, at 1383.

308. Ibid, at 1383.

309. Namitabar v Canada (MEI) (1993) 78 FTR 1 (FCTD). See, also, Fathi-Rad v Canada (Secretary of State) 77 FTR 41 (FCTD).

310. Ibid, Namitabar, at 7:

See, also, Macklin, A, "Refugee Women and the Imperative of Categories" (1995) 17 Human Rights Quarterly 213 at 231-232: 311. Ibid, Namitabar, at 9. In similar vein, see, the Canadian Gender Guidelines, supra, note 295, at 4: 312. Supra, note 294, at 9.

313. CRDD T95-03883, MacPherson, Aulach, 9 April, 1996, at 9.

314. China's strict control of reproduction is somewhat unique. This is not to suggest that other states do not seek to influence, by law or other means, the reproductive choices made by their citizens. In fact:

Nor would it be accurate to suggest that China's resort to compulsory sterilization is unique. In 1976, India permitted state legislatures to enact laws allowing for compulsory sterilization and as a result several million forced sterilizations were performed: see, Economic Measures in Fertility Policy and Human Rights" in Population and Human Rights: Proceedings of the Expert Group Meeting on Population and Human Rights, Geneva, 3-6 April 1989 (1990) 132, 136.

315. Hull, E, Recent Population Policy in China (December 1991) Australian International Development Assistance Bureau, Sector Report 1991, No.4, at 5:

316. United States Department of State, Country Reports on Human Rights Practices for 1989, China (1990) 809. Interestingly, there is evidence to suggest that implementation of the policy in Tibet, where the population is already perceived as being in political opposition to the state, is particularly harsh. See, Tobin Shiers, E, "Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers" (1990) 30 Virginia Journal of International Law 1007, 1014. Tobin Shiers observes furthermore, that "[r]efugee reports from Tibet ... indicate a difference in the level of medical attention given to women who volunteer to have abortions and those who are coerced" (at 1014). See, also, Devine, C and Rabgey, L, "Tibetan Women" (1995) 15 (2&3) Canadian Woman Studies, 73; and Canadian Immigration and Refugee Board, Human Rights Briefs: Women in China (October, 1993) 15-16, which notes conflicting reports as to whether the one child policy is implemented in Tibet.

317. For example, the New Zealand Refugee Status Appeals Authority in Refugee Appeal No. 3/91 Re ZWD (20 October 1992) at 37, concluded that:

318. Chan v Canada (MEI) (1993) 20 Imm LR (2d) 181, at 219 (FCA) per Mahoney JA (dissenting): This view was affirmed by Justice La Forest (dissenting) of the Supreme Court of Canada in Chan v Canada (MEI) File no 23813, October 9, 1995 (SCC) at para 63.

319. Refugee Appeal No. 3/91 Re ZWD (20 October 1992), (NZRSAA).

320. See, for example, Matter of Chang, Interim Decision 3107 (BIA, May 12, 1989); Cheung v Canada (MEI) [1993] 2 FC 314 (FCA); and Refugee Appeal No. 3/91 Re ZWD (20 October 1992) 59-84, (NZRSAA).

321. Matter of Chang, ibid. Note that the primary ground argued was particular social group not political opinion.

322. Ibid, at 10. Persecution might occur, however, where "... the policy was being selectively applied against members of particular religious groups or was in fact being used to punish individuals for their political opinions." However:

323. The various administrative directives are canvassed in detail in Guo Chun Di v Carroll 842 F. Supp. 858, 862-864. (ED Va. January 14, 1994) (reviewing the Immigration Judge's decision in In re Guo, No. A72 762 107, (BIA August 18, 1993)).

324. Guo Chun Di v Carroll, ibid, at 862, refers to US Department of Justice policy guidelines issued to the INS which were described as "... noting that the PRC government views such defiance [i.e. opposition to involuntary sterilization] as an act of 'political dissent' ..." citing 135 Cong. Rec. s 8244 (daily ed. July 19, 1989). See, also, Memorandum from Edwin Meese III, Attorney General, to Alan C Nelson, Commissioner, US Immigration and Naturalization Service, P1.Ex.A (Aug. 5, 1988) directing that INS officers give careful consideration to asylum applications based on refusal to comply with the Chinese population policy stating: "... there is evidence to support the assertion that such [refusal] is viewed by PRC officials as 'political dissent'."

325. See, Chen Zhou Chai v Carroll 48 F 3d 1331 (4th Cir. March 6, 1995); Xiu Qin Chen v Slattery No. 94 Civ. 2568 (EDNY September 6, 1994); Peng-Fei Si v Slattery No. 93 Cir. 8069, (SDNY, October 13, 1993); and contra, Xin-Chang v Slattery 859 F Supp 708 (SDNY August 5, 1994).

326. Supra, note 325.

327. Ibid, at 867.

328. Ibid, at 873. It is useful to compare the approach taken in Chen Zhou Chai v Carroll 48 F 3d 1331, at 1343 (4th Cir. March 6, 1995) where the Circuit Judge held:

329. Moriarty, TA, "Guo v Carroll: Political Opinion, Persecution, and Coercive Population Control in the People's Republic of China" (1994) 8 Georgetown Immigration Law Journal 469, criticizes the decision's failure to refer to international law regarding the right to procreate.

330. (1993) 20 Imm LR (2d) 181, at 194-195 (FCA).

331. Ibid, at 193-195.

332. Ibid, at 193. In dissent, Justice La Forest of the Supreme Court of Canada takes a very different approach to this issue, see, Chan, infra, note 338.

333. Ibid, at 195. Accord, Refugee Appeal No. 3/91 Re ZWD (20 October 1992) at 59 (NZRSAA): "[t]here has been no evidence to suggest that opponents of China's family planning policies are imputed with a political or religious belief ..."

334. It is important to note that both Justice Heald and Justice Desjardins found that Chan had not shown that he faced forced sterilization if he returned to China (at 187-189 and 197 respectively). In my view, this conclusion colours their alternative findings with regard to whether the persecution faced was 'for a Convention reason'. Conversely, Mr Justice Mahoney (dissenting) held that "... fulfilment of [the claimant's] commitment to undergo forced sterilization would only be unnecessary if his wife were to be sterilized instead" (at 217), and moreover, Chan's claim could not be distinguished from the Federal Court of Appeal's earlier decision in Cheung v Canada (MEI) [1993] 2 FC 314, (at 223-224).

335. Chan, supra, note 330, per Heald, JA, at 194; and Desjardins, JA, at 207:

336. [1993] 2 FC 314 (FCA).

337. Ibid, at 323.

338. Chan v Canada (MEI) File no. 23813, October 19, 1995 (SCC).

339. Ibid. Justice Major , (for the majority: Sopinka, Cory, Iacobucci, and Major JJ.) stated (at para 137):

Conversely, Justice La Forest, (dissenting: La Forest, L'Heureux-Dubé and Gonthier JJ.) asserted (at para 63): 340. Ibid, at para 92: 341. See, for example, Human Rights Watch/Asia, "China: Keeping the Lid on Demands for Change" vol 7(7) (June 1995) 5-6 which notes the case of Zhang Lin, a labour activist: 342. Supra, note 330 and accompanying text.

343. Hartmann, B, Reproductive Rights and Wrongs: The Global Politics of Population Control and Contraceptive Choice (1987) at 147:

344. United States Department of State, Country Reports on Human Rights Practices for 1990, China (1991), cited in Chan, supra, note 330, at 216: See, also, Canadian Immigration and Refugee Board, Human Rights Briefs: Women in China (October, 1993) 13-14, discussing the role of the work unit and neighbourhood committee in enforcing the one child family policy.

345. Supra, notes 316 and 317.

346. Lin, SM, "China's One-Couple, One-Child Family Planning Policy as Grounds for Granting Asylum - Xin-Chang Zhang v Slattery, No 94, Civ. 2119 (SNDY Aug. 5, 1994)" (1995) 36 Harvard Internati0onal Law Journal 231, at 242:

See, also, Tobin Shiers, E, "Coercive Population Control Policies: An Illustration of the Need for a Conscientious Objector Provision for Asylum Seekers" (1990) 30 Virginia Journal of International Law 1007, at 1015: 347. As the dissenting judgment of the Canadian Supreme Court in Chan, supra, note 338, observes: "... it is quite conceivable that the refugee may only have a vague notion as to why he or she is being persecuted."