Zheng v. Canada (Minister of Citizenship and Immigration), 2002 FCT 448

Date: 20020419

Docket: IMM-2415-01

Neutral citation: 2002 FCT 448

BETWEEN:

                                                                 JIN DONG ZHENG

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MARTINEAU, J.:

[1]                 The applicant, Jin Dong Zheng, was only 14 years old when she was apprehended by Immigration officials in Windsor, Ontario, after being smuggled into Canada from China in 1999. During her detention, she applied for refugee status. The Immigration and Refugee Board (Convention Refugee Determination Division) (the "CRDD") found her not to be a Convention refugee. She now applies for judicial review of this negative finding.

[2]                 This judicial review raises three issues:

a) Did the CRDD fail to exercise its jurisdiction by failing to assess the constitutionality of the Convention refugee definition?

b) Did the CRDD err in law by failing to assess whether the act of being illegally trafficked as a child is itself persecution to the point of satisfying the definition of Convention refugee?

c) Did the CRDD err in determining, on the facts, that the treatment the applicant will face from State authorities upon return to China does not amount to persecution?

1.         Did the CRDD fail to exercise its jurisdiction by failing to assess the constitutionality of the Convention refugee definition?

[3]                 The applicant was one of approximately twenty minors (hereinafter collectively designated the "claimants") coming from China and apprehended at the Windsor/US border who claimed Convention refugee status. By a Notice of Constitutional question dated August 3, 2000, they applied jointly for a ruling from the CRDD that the definition of "Convention refugee" in section 2 of the Immigration Act (the "Act") is of no force or effect to the extent that it violates the Canadian Charter of Rights and Freedoms (the "Charter") by virtue of its under inclusiveness.

[4]                 The definition of Convention refugee reads as follows:

2. (1) In this Act,

"Convention refugee" means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country ...

2. (1) Les définitions qui suivent s'appliquent à la présente loi.

« réfugié au sens de la Convention » Toute personne_:

a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:

(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays ...

[5]                 The Charter issue was raised as an alternative argument only. The first head of the claimants' position was presented to the CRDD in the following manner. Young persons from rural China (principally the Fuzhou or Wenzhou regions) who are smuggled to North America generally make this journey as a result of decisions taken by their families, in which the young person is not an active participant. If these smuggled youth are returned to China, they face a variety of threats to their human dignity and human rights, from the Chinese government, their families and the criminal smugglers (known as "snakeheads"). The nature of these anticipated harms brings the plight of these young rural victims of the smuggling trade within the scope of the 1951 Convention Relating to the Status of Refugees. The claimants asserted that they are members of a "particular social group", that is "young female, rural Fujianese". They also contended that the act of being trafficked as minors is itself "persecution". This situation, therefore, comes within the ambit of the Act. Like the terms "persecution" and "particular social group", the nexus requirement, that the harm be by reason of the claimants' membership in a particular social group, is capable of an inclusive interpretation. Accordingly, they submitted that the refugee definition does not violate the Charter.

[6]                 The second head of the claimants' position was presented to the CRDD as an alternative proposition only. The Charter issue was raised as follows:

If Canada's domestic implementation of the Convention was interpreted in a way that categorically denied these young people access to refugee protection this interpretation would violate s. 15 of the Charter. In particular, if the term "persecution" in s. 2(1) of the Immigration Act were construed narrowly, so as to prevent persons confronting the types of harm that these young rural persons face if returned to China from obtaining Convention refugee status, this interpretation would be unconstitutionally underinclusive. Similarly, if the term, "particular social group" were interpreted so as to deny these young rural persons, as a class, the benefit of refugee protection against these anticipated harms, this narrow interpretation would also violate the Charter of Rights and Freedoms. It is a well-established principle of statutory construction that interpretations that would cause legislation to violate the Constitution are to be avoided whenever reasonably possible. Accordingly, these terms should be construed in a broader and more inclusive manner, which does not violate the Constitution's equality guarantees. In the alternative, if the CRDD determines that s. 2(1) cannot be given a broader, constitutionally valid interpretation, the tribunal has a legal duty to decline to apply the impugned section "to the extent of the inconsistency". In the context of this case, this means that the tribunal should, when applying the impugned section, "read in" appropriate language that would cure the constitutional defect. (Applicants/claimants' memorandum of law, para. 2).

[7]                 It was determined initially that evidence and argument on the Charter issue common to each of the claimants' cases would be heard prior to the hearing of the individual refugee claims. The Minister submitted that, until evidence had been led in each of the claimants' hearings, there were no facts before the CRDD on which it could base its decision or decisions on the issues raised in the Notice of Constitutional question.

[8]                 The parties then agreed that the transcript of the "lead case" hearing (that of Hai Yan Chen) and the parties' memorandums on the Charter issue would be entered into evidence in the related cases alongside individual factual material.

[9]                 The Minister took the position that the CRDD should simply refrain from making a ruling on the issues raised in the claimants' Notice of Constitutional question on the ground that "the claimants have conceded that the statute does not, expressly or by necessary implication, exclude them from protection" (Minister's revised memorandum of argument, para. 86).

[10]            The Minister also submitted that the CRDD "will have to decide whether any harm alleged by the claimants has a causal nexus to an enumerated ground under the definition" and asserted that "according to the evidence led during the "lead case", the claimants have not established a causal nexus to the Convention refugee definition" (Minister's revised memorandum of argument, para. 62).

[11]            In its reasons issued on April 17, 2001, the CRDD found the applicant in the present case not to be a Convention refugee. It made this negative finding notwithstanding the fact that "[t]here is no doubt in the minds of the panel that the claimant falls into a particular social group - young female, rural Fujianese". The CRDD went on to add that "[i]ndeed, the Minister, in argument virtually concedes this point. There is a nexus". The CRDD found after considering the particular situation of the applicant, that on a balance of probabilities, the applicant "is a voluntary migrant who left China to improve the economic status of herself and her family".

[12]            Although the Charter argument raised by the claimants is not discussed in the impugned decision, it follows from the findings made by the CRDD that the statute does not, expressly or by necessary implication, exclude the claimants from protection. The CRDD accepted the claimants' principal proposition that rural youth in Fuzhou and Wenzhou are a "particular social group", and that a "nexus" exists with the Convention refugee definition. Once that determination had been made, it was unnecessary to examine the Charter argument.

[13]            In Baker v. Canada, [1999] 2 S.C.R. 817, L'Heureux-Dubé J. for the Court states at p. 832:

Because, in my view, the issues raised can be resolved under the principles of administrative law and statutory interpretation, I find it unnecessary to consider the various Charter issues raised by the appellant and the interveners who supported her position.

[14]            Additionally, in R. v. Scott, [1990] 3 S.C.R. 979, the Court held at p. 1015:

I conclude that the Crown's conduct in staying the proceedings to avoid an adverse judicial ruling and then recommencing them establishes the case for abuse of process. Having so concluded, it is unnecessary to consider the position under the Charter. I leave the question of remedy to later in these reasons.

[15]            Although not citing any specific authority for the proposition, Sharpe and Swinton in The Charter of Rights and Freedoms (Toronto: Irwin Law, 1998) state at p. 69:

... It is an established practice in Canadian law that, if a judge can decide a case without dealing with a constitutional issue, he or she should do so.

[16]            In Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572, Sopinka J. stated as follows at pp. 1579-1580:

The appellant also argued that s. 2(b) of the Charter includes the right of the press to seek and receive as well as impart information. The appellant contends that if journalists are compelled to disclose sources then they will lose access to information as news sources "dry up". This hindrance on the ability of the press to gather information is said to violate s. 2(b). The discussion of this issue in the courts below resulted in the three constitutional questions being stated. Despite the importance of ascertaining the extent of the s. 2(b) rights I am of the opinion that the disposition of this appeal does not require that the constitutional questions be answered.

The mere existence of constitutional questions does not obligate a response on behalf of this Court. Rule 32 of the Supreme Court Rules which requires that questions be stated where the applicability or operability of provincial or federal legislation is involved is intended to insure that all potentially interested parties are afforded an opportunity to address an issue concerning the constitutionality of a particular practice or law. However, this Court in deciding the merits of an appeal is not necessarily bound by the stated questions. Beetz J., speaking for the Court in [1983] 2 S.C.R. 60">Bisaillon v. Keable, [1983] 2 S.C.R. 60, held at p. 71:

The parties are generally left wide latitude by the Chief Justice or other judges of this Court in formulating the constitutional questions which they submit for approval. However, it does not follow that the Court is bound by these questions, and that it is required to answer them if it may dispose of the appeal without doing so or if it appears that the facts of the case do not provide a basis for such questions. The questions may not be used as a means of transforming an ordinary proceeding into a reference: [1977] 2 S.C.R. 179">Vadeboncoeur v. Landry, [1977] 2 S.C.R. 179, at pp. 187-88.

The same opinion was expressed by Dickson J. (as he then was) in Skoke-Graham v. The Queen, [1985] 1 S.C.R. 106, at p. 121.

If the facts of the case do not require that constitutional questions be answered, the Court will ordinarily not do so. This policy of the Court not to deal with abstract questions is of particular importance in constitutional matters. See Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at pp. 363-65.

I am of the opinion that the facts of this case do not warrant an answer to these broad and important constitutional questions. To address the questions would require that this Court make pronouncements well beyond the issues presented in the actual appeal. The adjudication of the actual dispute does not require the resolution of the abstract questions of law raised in the constitutional questions.

[17]            I have also reviewed the CRDD decisions in Xia Ling Zheng, TA0-03537, and Chao He, TA0-03488, both rendered in January 2002 which were transmitted by the applicant's counsel after the hearing of this judicial review application. This Court is not bound by decisions of the CRDD. More importantly, in each of the decisions submitted, the Board only undertook to look at the Charter argument once they had found the applicant was not a member of a particular social group. The applicants were, therefore, excluded from the definition of Convention refugee. The Board then looked at the Charter argument as an alternative argument to see if the applicants were expressly, or by necessary implication, excluded from the bounds of the definition. The Board in each case, rejected this line of reasoning. The Board acknowledged that other panels had found similar claimants to be members of a particular social group. The Board, however, had case law and individual factual circumstances to support their conclusions in these cases. They based their decisions on their interpretation of the legislation with regard to the particular facts of the cases before them.

[18]            Accordingly, I conclude that the CRDD has not failed to exercise its jurisdiction by failing to assess the constitutionality of the Convention refugee definition.

2.         Did the CRDD err in law by failing to assess whether the act of being illegally trafficked as a minor is itself persecution to the point of satisfying the definition of Convention refugee?

[19]            The applicant, together with the other claimants, contended before the CRDD that the act of being trafficked as a minor is itself persecution sufficient to meet the definition of Convention refugee. The claimants' submission is based upon the belief that a minor cannot consent to economic migration, smuggling or trafficking. Without consent, minors are forcibly trafficked and forcibly led to deal with the dangers and consequences of trafficking. The claimants submitted to the CRDD that the dangers in the smuggling travel methods, imprisonment upon return to China if caught, being "recycled" out of China to repay original and accumulated debts, and in forced labour in sweatshops or the sex trade upon arrival at their final destination form the objective basis of a finding of persecution.

[20]            The claimants referred the CRDD to the Report from the Roundtable on the Meaning of "Trafficking in Persons", the Human Rights Standards for the Treatment of Trafficked Persons, and the Convention on the Rights of the Child (indexed as items 6 and 33 of exhibit C-2). These international instruments clearly reveal that minors cannot consent to being trafficked. An important element in these documents is that consent must be informed consent. Accordingly, the person must be aware of the end-consequences of being trafficked in order to give consent.

[21]            The documentary evidence and affidavits filed before the CRDD (exhibits C-2, C-3 and C-4) further indicate that women who are trafficked out of China are at risk of being forced to work in the sex trade or in sweat shops as indentured labour. They are at risk of rape and other forms of violence. Snakeheads have an interest in trying to "recycle" a person who has been deported back to China in order to claim their fees. The total fee only becomes payable once the person is brought to their final destination. In the case at bar, the applicant was intercepted prior to arriving in the USA. Therefore, the applicant's counsel has asserted that should the applicant be deported to China, the snakeheads would likely pressure the applicant's mother to send the applicant out of the country again.

[22]            After reviewing the evidence on record, the CRDD found, on a balance of probabilities, that the applicant did not have a well-founded fear of persecution. In this regard, it examined the applicant's fear of persecution from her mother's treatment at_home. This examination is evidenced in the transcript of the hearing and in the CRDD's acknowledgment, in their reasons, of the testimony heard at the hearing. They found that the mother's treatment did not amount to persecution, but was an isolated incident. Moreover, they noted particularly that the applicant omitted beatings by her mother from her Personal Information Form, only to mention them later at the hearing. The CRDD interpreted "persecution" by reference to the relevant case law and found that the applicant did not meet the evidentiary burden upon her in this context.

[23]            The argument that being illegally trafficked as a minor constitutes persecution in itself has, in fact, been addressed and rejected by the CRDD in the following passage:

While an argument can be made with the aid of the very thorough material in Exhibits C-2, C-3 and C-4 that the claimant has been persecuted we are impressed by the Judgement of Mr. Justice Muldoon of the Federal Court Trial Division in Xiao, who states:

The Convention on the Rights of the Child (resolution 44/25 of the G.A. of the U.N. of November 20, 1989) is comprehensive. While 18 years of age is the highest age of minority, the transition is not sudden; the Convention clearly recognizes that maturity is an on-going process such that some "minors" grow into maturity gradually, before attaining the age of 18. A seventeen-year old is therefore an "elderly" minor. So it appears in this case....

The claimant's oral evidence is that she was happy to leave China to go abroad to work and study. She said that she claimed refugee status on the advice of a Chinese speaking Interpreter during her detention in Windsor, Ontario in order to stay in Canada.

[24]            As we can see, the CRDD expressly acknowledged that an argument can be made that the claimant has been persecuted, and made further reference to the Convention on the Rights of the Child which demonstrates that it did examine the issue of consent in the context of child trafficking. The CRDD rejected that argument on the basis of what had been decided in Xiao v. Canada (M.C.I.), 2001 FCT 195 and the fact that the applicant testified that she "was happy to leave China to go abroad to work and study."

[25]            In the Xiao case, Muldoon J. suggested that minors have varying degrees of capacity to consent that increases with maturity and that it is to be determined on the basis of the individual's circumstances. The applicant has not invited the Court to re-examine the rational of what has been said in Xiao, but simply asks that the matter be referred back to the CRDD for re-determination on the basis that the issue of consent was not discussed in the CRDD's reasons.

[26]            Although the CRDD's reasons for rejecting the applicant's argument on the issue of trafficking of a minor and consent could have been more elaborated and articulated, I find no violation of the rules of fairness. The reasons given are sufficient to permit the applicant and a reviewing court to understand the rational of the CRDD in deciding that the applicant has not demonstrated a well-founded fear of persecution in this context. Accordingly, I conclude that the applicant failed to convince the Court that the CRDD failed to assess whether the act of being illegally trafficked as a minor is in itself persecution.

3.         Did the CRDD err in determining, on the facts, that the treatment the applicant will face from the State authorities, upon return to China, does not amount to persecution?

[27]            Because of her alleged illegal exit, the applicant submitted a fear of persecution from the State authorities if returned to China. Counsel for the applicant submits before this Court that the CRDD ignored evidence that is pertinent to incarcerated minors and that the applicant is entitled to the protection of the principles found in the Convention on the Rights of the Child. The latter states, regarding detention of minors, that it should only occur in rare circumstances and be used as a last recourse. It further indicates that children should be detained separately from adults.

[28]            I find this argument totally unfounded. The CRDD did, in fact, consider the Convention on the Rights of the Child (p. 8 CRDD reasons). It also looked at contrasting documents on the penal system in Fujian province as it would apply to the applicant, but did not accept that the applicant would receive treatment amounting to persecution or treatment more harsh than others by virtue of her group membership. Although the applicant was facing potential imprisonment and beatings the CRDD did "not find the punishments mentioned, flowing from these general laws of application in China, to be so serious or disproportionate as too clearly amount to persecution. As to possible beating of those held in detention for illegal exits, it is not reliably established that there is more than a mere possibility of its occurrence, for this young claimant".

[29]            Moreover, the CRDD mentioned that it was "guided" by the decision of this Court in Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.) and found that the "principles" applied to this case.

[30]            This Court has decided in Valentin that laws of general application, relating to illegal exit, are not persecution. Marceau J., for the Court of Appeal, wrote at pp. 395-396:

I will say, first, that while in humanitarian terms I am very much inclined to sympathize with the idea of granting refugee status to everyone who faces criminal sanctions such as those imposed by section 109 of the Czech Criminal Code, in practical and legal terms the idea seems to me to be illogical and without any rational basis. Neither the international Convention nor our Act, which is based on it, as I understand it, had in mind the protection of people who, having been subjected to no persecution to date, themselves created a cause to fear persecution by freely, of their own accord and with no reason, making themselves liable to punishment for violating a criminal law of general application. I would add, with due respect for the very widely held contrary opinion, that the idea does not appear to me even to be supported by the fact that the transgression was motivated by some dissatisfaction of a political nature (on this point, see, inter alia, Goodwin-Gill, op. cit., pages 32 et seq.; James C. Hathaway, The Law of Refugee Status, pages 40 et seq.), because it seems to me, first, that an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness found at the heart of persecution (cf. Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.)), but particularly because the direct relationship that is required between the sentence incurred and imposed and the offender's political opinion does not exist.

In my opinion, a provision such as section 109 of the Czech Criminal Code can have a determining effect on the granting of refugee status only in an appropriate context. This will occur in cases where the provision, either in itself or in the manner in which it is applied, is likely to add to the series of discriminatory measures to which a claimant has been subjected for a reason provided in the Convention, so that persecution may be found in the general way in which he is treated by his country.¹ [¹ This is an application of the principle of the cumulative effect referred to in paragraphs 54 and 55 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, published by the Office of the United Nations High Commissioner for Refugees (Geneva, September 1979)]. I noted earlier that counsel for the appellants had in effect attempted to connect his clients' fear of criminal sanction to the difficulties they had experienced in the past. The problem is that such a connection is not possible here, since there is no reason to believe that the claimants' membership in the Catholic religion, a major cause of the difficulties they had experienced, or even their disagreement with the government, if we assume that this had some unfortunate consequence for them in the past, could have any influence at all on the manner in which section 109 would be applied to them. (emphasis added)

(Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.), paras. 8-9)

[31]            The reasoning in Valentin has been followed by this Court in similar cases involving minors with similar results (see Canada (Minister of Citizenship and Immigration) v. Lin, [2001] FCA 306; Li v. Canada (Minister of Citizenship and Immigration), [2001] FCT 1243). For laws of general application to amount to persecution, a distinction must be shown in their application that is related to the ground of persecution claimed by the applicant. Therefore, in this case, the applicant would have to show that she would be treated more harshly under these laws because of her membership in her particular social group.

[32]            I find no compelling reason to revisit the case law on the matter. The CRDD did not dismiss the applicant's fear of persecution for her illegal exit from China on the basis of the decision in Valentin alone. I find that the CRDD did not commit any reviewable error in concluding that penalties for illegal exit pursuant to a law of general application are not persecution. Moreover, I conclude that it was reasonably open to the Board to find, on the facts, that the treatment the applicant will face at the hands of the State, upon return to China, does not amount to persecution.

CONCLUSION

[33]            For all of these reasons, the application for judicial review is dismissed.

[34]            The applicant has proposed the three following questions to be certified:

1)         Is it an error in law for the Board to fail to address arguments regarding the Constitutional validity of the Convention refugee definition?

2)         Is it an error for the Board to fail to assess whether trafficking of minor amounts to persecution?

3)         Is it an error of law to apply the Valentin test to minors who have been trafficked?

[35]            After hearing the matter and providing counsel the opportunity to make submissions, I have concluded that this is not a proper case to certify a question of general importance. A certified question must transcend the interests of the immediate parties, contemplate issues of broad significance and be determinative of the appeal at hand. Although the questions involve minors in general and do transcend the interests of the immediate parties, given the mixed law and fact nature of the findings of the CRDD in the case at bar, I do not find that any of these questions would be determinative of an appeal in this case. And, in my view, the proposed questions are not ones that would be of broad significance or general application: Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (F.C.A.).

OTTAWA, Ontario

April 19, 2002

                                                                                                                               Judge