Date: 20001129
Docket: IMM-1507-00
BETWEEN:
| XIANG CHUN LIANG |
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning ascribed to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 2nd of March, 2000.
[2] The applicant is a citizen of the People's Republic of China. He was forty-six years of age at the time of his hearing before the CRDD. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to the People's Republic of China, by reason of his political opinion or perceived political opinion and his membership in a particular social group, namely, those who violated the one-child policy of the People's Republic of China. The applicant and his wife have three children, the youngest of whom is in his mid-teens.
[3] In its reasons, the CRDD describes the applicant's story as "disjointed". It found him not to be a credible witness in some key areas. The CRDD's "findings of fact" are recorded in its reasons in the following terms:
| I find that the claimant is a citizen of China. I accept his evidence that he was fined for breaching population control policies of the Chinese government several years ago, and that he paid the fine. I do not accept that his spouse was sterilized long after the birth of their last child. |
| I conclude that the claimant is no longer of interest to the government of China for matters relating to population control measures. |
| I find from the interview notes taken when the claimant arrived in Canada that he unfortunately became embroiled in a failed business, and that he incurred significant debts as a result. I do not accept that the claimant was being harassed by fishing authorities for reasons having to do with the population control policies of the government. |
| I conclude that the claimant left China for economic - not persecutorial - reasons. |
Having so concluded, the CRDD described the sole issue that remained for determination as the impact of the claimant's illegal emigration from China. It notes that the applicant alleged before it that he would be treated harshly by the government of China for his illegal exit. On this issue, the CRDD concluded:
| I do not accept illegal departure per se to be a political statement. It is in this case an act driven primarily by economic considerations. There is no nexus between what the claimant fears and the definition of Convention refugee. |
[4] Counsel for the applicant urged that the CRDD simply ignored in its reasons for decision certain of the evidence before it and, indeed, one of the issues that the presiding member of the CRDD identified at the opening of the hearing. On the first page of the transcript of the hearing before the CRDD2, the presiding member is reported as saying:
| The issues that we will be dealing with at this hearing are as follows: ... sur place claim. |
Before the commencement of the hearing, counsel for the applicant had drawn the sur place issue to the attention of the CRDD, in writing, in the following terms:
| ..."sur place" as claimant was pictured on B.C.T.V. and falsely alleged to be the captain of the boat and to have been the owner of the boat that brought the refugee claimants to Canada.3 |
While, as noted in the foregoing quotation, both the applicant and his counsel took the position that the applicant was not indeed the captain of the boat or the owner of the boat that brought he and many others to the shores of British Columbia, it was apparently not in dispute that, based upon the special expertise of the applicant, he had been a navigator of the boat and in return for providing that service, he had received free passage to Canada.
[5] Counsel urged before the CRDD that, in the circumstances, the applicant would not be viewed by Chinese authorities, if he were returned to China, simply as an illegal emigrant, but rather as one of the human smugglers or, at least, as one complicit with the human smugglers. As such, counsel urged, the treatment that the applicant would receive would be substantially different from that accorded to mere first time Chinese illegal migrants; it would be significantly more severe to the point of amounting to persecution on a Convention ground.
[6] The Refugee Claims Officer who assisted at the hearing of the applicant's claim before the CRDD commented in his submissions4:
| There's also a sur place claim being put forward because the Claimant was shown on a local TV broadcast and falsely alleged to be the captain or owner of the smuggling boat. It is acknowledged that those identified by Chinese authorities as organizers or enforcers in people smuggling operations are liable to criminal prosecution and are probably dealt with more harshly than general returnees. However, once again, a prosecution versus persecution issue is probably here; this time a criminal prosecution aspect. |
| The Claimant acknowledges in the port of entry notes that he obtained free passage on the smuggling boat, he's also said so in his testimony today. He got free passage in return for navigating the boat. The Claimant was, indeed, not a mere smugglee [illegal migrant]. He was, in fact, in some aspects, complicit in the actual smuggling. He played an active role for economic gain, the economic gain being free passage. He may not have been a snakehead, but it was his assistance that helped the smuggling go ahead, and I guess it's to be expected that the Chinese government may deal with that more harshly that [sic] a simple smugglee. |
[7] While the CRDD examined at some length the treatment by Chinese authorities of first-time illegal migrants who are returned to China, it did not, in any respect, acknowledge the submissions of counsel for the applicant to the effect that the applicant might well not be perceived by Chinese authorities as a simple first-time illegal migrant but rather as a smuggler or a person complicit in smuggling, a possibility acknowledged by the Refugee Claims Officer.
[8] I am satisfied that the CRDD, in first acknowledging that this was an issue before it, and in then completely failing to address the issue in its reasons for decision, erred in a reviewable manner.
[9] I am satisfied that this submission on behalf of the applicant has merit and that this application for judicial review must be allowed.
[10] In Gao v. Canada (Minister of Employment and Immigration)5, Mr. Justice Hugessen wrote:
| ...The Refugee Division did not address the principle ground alleged by the appellant in support of her claim, namely that she took part in "bourgeois" activities for which she would be punished if returned to China. That being the case, the appeal should be allowed and the matter referred back for re-hearing.6 |
[11] While the sur place elements of the applicant's claim, taken together with the assistance that he provided to the human smugglers in return for economic advantage may not be said to be the "principle ground alleged" on behalf of the applicant, it is certainly a significant ground and one that the CRDD here simply did not address.
[12] In light of the foregoing, I need not turn to other issues raised on behalf of the applicant, of which there were a number, but none of which I regard determinative.
[13] For the foregoing reasons, this application of judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the applicant's application for Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[14] Counsel for the respondent urged certification of a question in the following terms:
| Does the Refugee Division commit a reviewable error if it finds that a refugee claimant does not have a well-founded fear of persecution if it does not refer to the claimant's claim of refugee sur place in its reasons? |
Counsel for the applicant urged that the question, as framed, should not be certified because, on the facts of this matter, the CRDD not only did not refer in its reasons to the applicant's sur place claim, but further, it did not even refer to the evidence underlying the sur place claim. Further, counsel for the applicant urged that this matter turns on its particular facts. Finally, counsel urges that it is trite law that the CRDD, in disposing of a claim before it, must have regard to the totality of the evidence before it and its failure in this regard was determinative of the claim.
[15] I am in agreement with the position of counsel for the applicant. I am satisfied that this matter turns on its particular facts and raises no serious question of general importance that has not previously been dealt with on parallel, if not the same, facts. In the circumstances, no question will be certified.
____________________________
J. F.C.C.
Ottawa, Ontario
November 29, 2000
__________________2 Tribunal Record, page 16, lines 33 to 35.
3 Applicant's Record, page 32.
4 Tribunal Record, pages 47 and 48.
5 [1993] F.C.J. No. 1052 (F.C.T.D.).
6 To the same effect see: Mahanandan et al v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 1228 (F.C.T.D.) and Asubonteng v. Canada (Minister of Employment and Immigration)[1994] F.C.J. No. 1126 (F.C.T.D.).