Date: 20010423
Docket: IMM-2893-00
Citation: 2001 FCT 374
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
ZU HUANG LI
Respondent
AND BETWEEN:
Docket: IMM-2894-00
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
YONG MING ZHANG
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] These are applications by the Crown pursuant to s. 82.1(1) of the Immigration Act, R.S.c. 1985, c. I-2 (the "Act") for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated April 20, 2000, wherein the Board determined that the Respondents Zu Huang Li ("Li") and Yong Ming Zhang ("Zhang") were Convention refugees (the "Decision").
[2] The legal issues are identical and the relevant facts are similar in the two applications. The Respondents' cases were heard by the Board at the same time and the Decision deals with both refugee claims. For these reasons, and because the Respondents have retained the same counsel, the two applications for judicial review were heard together.
The Facts
[3] The Respondents are citizens of the People's Republic of China ("China"). They were among the many Chinese people from Fujian province who travelled in dilapidated boats to the coast of British Columbia in the summer of 1999.
[4] The Respondents' boat departed from Fujian on June 12, 1999, and arrived in British Columbia on August 13, 1999. Because they were minors when their boats arrived, the Respondents were taken into the custody of the provincial Director of Family and Child Services while their Convention refugee claims were processed. At the time of the Decision on April 20, 2000, Zhang was 15 and Li was 17 years of age. By coincidence, both young men have the same birthday. On October 21, 2000, Zhang turned 16 and Li became 18.
[5] The Respondents' refugee claims were heard together with the refugee claims of 22 other minor applicants from the Fujian boats. A "Statement of Non-contentious Facts" was filed with the Board. It showed that:
- all the claimants were under 18 years of age
- all were citizens of China
- all were from Fujian province
- all were smuggled out of China illegally
- all arrived in B.C. by boat in August of 1999
- none of the claimants were accompanied by an adult family member or legal guardian
- all claimants, if they were returned to China, would be subject to fines and imprisonment for their illegal exit from China
- all the claimants feared being imprisoned and beaten by Chinese authorities if they were sent back
- all the claimants feared that they would be incarcerated for a prolonged or an indefinite period because their families would be unable to afford to pay the fines required to secure their release
[6] The Board heard the 24 refugee claims during a six-day period in November and December 1999, and in April 2000. The Board accepted only the Respondents' claims. In contrast to the other minor applicants, who indicated that they agreed with their parents' decisions to send them to Canada, the two Respondents testified that they were sent against their will.
The Decision
[7] The Board's only mention of the Respondents' social group was made in the following terms:
The basis of the claim presented by you is that you have a well-founded fear of persecution due to your membership in a particular social group - that is counsel - minor children who are sent from China into servitude and who fear incarceration upon return due to their illegal exit.
[8] The Board concluded that the Respondents' parents were the agents of persecution because they forced their sons into situations of systemic hardship. The Board also recognized that the Convention definition of a refugee is forward-looking, and that the Board must conclude that the Respondents faced more than a "mere possibility" of persecution if returned to China. The Board concluded that it "cannot be sure that you would not be subjected to continuing family coercion" and possibly be again sent on another boat.
[9] The Board also concluded that the Respondents could not avail themselves of state protection, because the law in China often relegated the punishment of minors to the family unit. Moreover, the documentary evidence revealed that numerous state officials and authorities are involved in human smuggling from China and Fujian province. Therefore, particularly in Fujian province, the Board found that there would be no assurance that state protection would be available.
[10] The Board also rejected the possibility of an internal flight alternative ("IFA") because the Respondents would be turned over to Chinese authorities if they were sent back, and then released into the custody of their families on payment of a fine. The Board noted that the Respondents would have "little opportunity" to relocate.
The Issues
Did the Board err in concluding that the Respondents were members of a particular social group, namely "minor children who are sent from China into servitude and who fear incarceration upon return due to their illegal exit?
[11] The Crown did not take issue with the principle that children can constitute a particular social group. However, the Crown said that the Board erred in defining the social group in terms of the persecution being suffered by the Respondents.
[12] The leading case on the meaning to be assigned to a particular social group is Canada (A-G) v. Ward, [1993] 2 S.C.R. 689. At p. 739, the Supreme Court of Canada described the following three categories of social groups:
a. groups defined by an innate or unchangeable characteristic (i.e. gender, linguistic background and sexual orientation);
b. groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association (i.e. human rights activists; and
c. groups associated by a former voluntary status, unalterable due to its historical permanence (i.e. because one's past is an immutable part of the person)
[13] In none of these categories is the social group characterized or defined by the persecution suffered by its members. Indeed, in Ward, at p. 729, the Supreme Court indicated that social groups should not be identified to include victims of persecution.
[14] The Crown submits that the social group identified by the Board breaches this rule and says that the requirement that social groups be defined independently of the persecution suffered is necessary to prevent situations in which the mere fact of membership in the social group, rather than a well-founded fear of persecution, would lead to refugee status.
[15] Shortly after the Supreme Court of Canada's decision in Ward, the Federal Court of Appeal in Chan v. Canada (M.E.I.), [1993] F.C.J. No. 742 QL[1] dealt with a social group which was defined by the persecution of its members and said at paragraph 22:
This leads me to a fundamental objection to acceptance of the group of parents with more than one child who are faced with forced sterilization as a "particular social group". This group, it seems to me, is defined solely by the fact that its members face a particular form of persecutory treatment. To put it another way, the finding of membership in a particular social group is dictated by the finding of persecution. This logic completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa) and voids the enumerated grounds of content. The logic also conflicts with the rejection, in Ward, supra, of groups defined "merely by virtue of their common victimization as the objects of persecution" at page 729...
[16] Counsel for the Respondents did not disagree with the proposition that a social group cannot be defined on the basis of the common victimization of its members. Instead, he submitted that the Applicant was misreading the Decision and that, when the Board mentioned the social group in the terms set out in paragraph 7 supra, it was describing the Respondents' entire refugee claim and was not defining the relevant social group. As well, counsel noted that the social group proposed by the Respondents in counsels' written outline of their oral submissions before the Board was "the unaccompanied minor PRC claimants". Counsel advised that there was no discussion before the Board about the appropriate social group, and therefore no reason to think the Board had rejected the definition suggested by the Respondents.
[17] On balance, I have not been persuaded by the Respondents' submission. It seems clear from the language used by the Board that it did choose to define the relevant social group in a manner which was not suggested by counsel for the Respondents. Further, based on the decisions in Ward and Chan, I am satisfied that the Board erred and that the social group has not been properly defined. On this basis, the matter will be sent back for a redetermination by a differently constituted panel of the Board.
Other Issues
[18] The Crown also suggested that the Board did not undertake a sufficiently thorough analysis of the availability of state protection and the possibility of an internal flight alternative, and that the Respondents' fears were of prosecution by the state and not persecution by their parents. However, in view of my conclusion about the social group, it is not necessary to deal with these further issues.
[19] Before closing, I wish to observe that, given the fact that the Respondents are nearing the age of eighteen years, and given that the definition of a Convention refugee is prospective, it seems to me that an assessment of the Respondents' refugee claims and the issues of state protection and an IFA must be made with an understanding of what, if anything, their ages will mean if they return to China. It may be that the Respondents will legally be adults and free of their parents' control by the time they return or soon after their return. In such circumstances, they may be able to ignore their parents and live and work in another part of China. On the other hand, Chinese people may never be free of parental control. Whatever the situation, I think the Board will need information about the existence and meaning of the age of majority in China before it can adequately address the Respondents' claims.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
April 23, 2001
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
- and -
ZU HUANG LI
DOCKET NO.: IMM-2893-00
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
- and -
YONG MING ZHANG
DOCKET NO.: IMM-2894-00
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: April 12, 2001
REASONS FOR ORDER: SIMPSON J.
DATED: April 23, 2001
APPEARANCES:
Ms. Sandra Weafer for Applicant
Mr. Joshua B. Sohn for Respondent(s)
SOLICITORS OF RECORD:
Morris Rosenberg for Applicant
Deputy Attorney General of Canada
Larson Boulton Sohn Stockholder for Respondent(s)
Vancouver, B.C.