Chen v. Canada (Minister of Citizenship and Immigration), 2003 FC 1059

Date: 20030912

Docket: IMM-478-03

Citation: 2003 FC 1059

BETWEEN:

                                                                CHEN, CHANG YEN

                                                    (A.K.A.: CHENG, CHANG YAN)

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicant not to be a Convention refugee and further determined that its finding that the Applicant, in all of his particular circumstances, is not a Convention refugee does not give rise to a violation of section 15 of the Canadian Charter of Rights and Freedoms^[1] (the "Charter"). The decision under review is dated the 8^th of October, 2002.

BACKGROUND

[2]                 The Applicant is a citizen of the People's Republic of China. He was smuggled into Canada from Fuzhou, Fujian, China at the age of 16 or 17. Before the Applicant left China, his father had become indebted to such a degree that he was unlikely to be able to repay the capital he had borrowed together with interest at the very high rates provided for. Both the Applicant and his father feared that, in the result, the Applicant would be forced into a de facto slave-like relationship with his father's creditor. The Applicant and his father apparently discussed the family situation. The Applicant attested and the RPD accepted that his father asked him whether or not he wished to go to North America. The Applicant indicated that he did wish to go to North America. In the result, the Applicant's father arranged through people smugglers for the Applicant to come to Canada, apparently en route to the United States. The Applicant was only apprehended, together with others, at a border crossing-point into the United States.

THE DECISION UNDER REVIEW

[3]                 The RPD determined the Applicant to be credible. It wrote:

The panel could see no reason to think the [Applicant] was not trying to tell the truth-as he saw it. The panel had an opportunity to observe the [Applicant] both in the initial sitting wherein a suitable designated representative was being sought, and in the final sitting of the hearing. This young man obviously loves his family and believes what his father tells him. There were no glaring inconsistencies in his evidence. The problems regarding the change in his birthdate were explained, and the Board must, in circumstances such as this, make allowance for local culture.

The claim must still be assessed on the basis of the information found, on a balance of probabilities, to be true. The panel finds that the [Applicant] has a genuine subjective fear of Mr. Li, based on what he himself has seen and what his father has told him. The panel finds that, unlike many poor, young Fujianese, this young man believes himself to be in charge of his own life. He [the Applicant] came to Canada of his own volition and not at the direction of his parents.

The [Applicant] has a subjective fear, but it is likely not well founded.^[2]

[4]                 The Applicant apparently based his claim to Convention refugee status on the grounds of political opinion and membership in a particular social group, the group being defined as "young Fujianese citizens (particularly girls) who travel unaccompanied by family members pursuant to exploitative agreements between their parents or other family members and criminal smugglers of Chinese migrants". In light of the RPD's findings reflected in the foregoing quotation, it is questionable whether the Applicant, certainly a young Fujianese citizen but not a girl, travelled pursuant to an "exploitative agreement". The RPD found the Applicant to be a willing participant to the agreement and did not appear to question his capacity to willingly participate.

[5]                 The RPD found no nexus between the Applicant's situation and the Convention ground of political opinion. With respect to particular social group, the RPD wrote:

Counsel argued, with a great volume of evidence, that the [Applicant] falls into a social group - [as defined above in these reasons] .

The only trouble is, the evidence does not support the concept of parental complicity in this case - despite counsel's arguments to the contrary. We even have an "affidavit letter" from the [Applicant's] father attempting to assist in providing "tutelage" in Canada.

The [Applicant] has decided he wants to study rather than work in Canada, and has made no attempt to pay off the father's second debt, incurred to send him here.

Thus, this [Applicant] might be said to be less than a full-fledged member of the social group that is the basis of the Charter challenge.^[3]

The RPD then went on to find that the social group as defined on behalf of the Applicant was not a "particular social group" within the usage of that phrase in the definition "Convention refugee".

[6]                 In support of its conclusion that the Applicant was not a member of a particular social group, the RPD cited Zhu v. Canada (Minister of Citizenship and Immigration)^[4] and Canada (Minister of Citizenship and Immigration) v. Lin^[5].

[7]                 The RPD wrote, by reference to the two (2) cited decisions:

The panel is reminded by these decisions that the Supreme Court of Canada in Ward... expressly rejected a wide definition of the term "particular social group" which would operate as a "safety net" to include any and all imaginable forms of persecution:

...international refugee law was meant to serve as a "substitute" for national protection where the latter was not provided. For this reason, the international role was qualified by built-in limitations. These restricting mechanisms reflect the fact that the international community did not intend to offer a haven for all suffering individuals. The need for "persecution" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e. individuals in search of better living conditions, and those victims of natural disasters, even when the home state is unable to provide assistance, although both of these cases might seem deserving of international sanctuary.

Similarly, the drafter[s] of the Convention limited the included bases for a well-founded fear of persecution to "race, religion, nationality, membership in a particular social group or political opinion". Although the delegates inserted the social group category in order to cover any possible lacuna left by the other four groups, this does not necessarily lead to the conclusion that any association bound by some common thread is included. If this were the case, the enumeration of these bases would have been superfluous; the definition of "refugee" could have been limited to individuals who have a well-founded fear of persecution without more. The drafters' decision to list these bases was intended to function as another built-in limitation to the obligations of signatory states. The issue that arises, therefore, is the demarcation of this limit.^[6]                                                                                                                                                                     [emphasis added by the RPD, citation omitted]   

[8]                 The RPD then went on to consider, at the request of counsel for the Applicant, and in the light of the conclusions it had earlier reached, the question of whether its interpretation of the meaning of "particular social group" is "unconstitutionally underinclusive". It elaborated the arguments presented to it on this question at significant length and then briefly analysed those arguments in the light of the decision of the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General)^[7] and expressed its conclusion on the issue in the following terms:

The Refugee Division cannot elevate an exercise in statutory interpretation to the level of constitutional remedy. We cannot place a person in a social group who, by the current wording of the statute, is not there. The panel, to put it another way, cannot equate "persons who face serious threats to their human dignity and core human rights" with "refugee". The claimant, rather, must establish that there is a nexus between the threat and the definition.^[8]

THE ISSUES

[9]                 Counsel for the Applicant defined the issues on this application for judicial review in the following terms:

-              Whether the Board erred in its assessment of the Applicant being trafficked as a minor and whether this places the Applicant within the context of a particular social group? [and]

-              Whether the Board erred in its Charter analysis?^[9]

[10]            Counsel for the Applicant, in the written materials before the Court, did not appear to question the RPD's determination that the Applicant "...might be said to be less than a full-fledged member of the social group that is the basis of his Charter challenge", but rather challenged: first, the RPD's broader determination that the Applicant was not a member of any particular social group within the meaning of that expression in the definition "Convention refugee"; and secondly, its determination that it was not open to it, in the light of earlier judicial decisions, particularly the decision of the Supreme Court of Canada in Canada (Attorney General) v. Ward,^[10] to determine the definition "Convention refugee", and more particularly the scope of the phrase "particular social group" within that definition, to be "unconstitutionally underinclusive" or, in other terms, in violation of subsection 15(1) of the Charter.

[11]            Arguably at least, the RPD's determination that the Applicant was not within the particular social group urged on his behalf, is fully determinative on this application for judicial review and I need go no further. That is my conclusion. However, for the sake of completeness, I will very briefly consider the issues that were raised on behalf of the Applicant.

ANALYSIS

a)         "Particular Social Group"

[12]            In Canada (Minister of Citizenship and Immigration) v. Lin^[11], the Court of Appeal had before it two certified questions, of which only the following question is relevant:

Is it an error in law for the Refugee Division to find that the minor claimant had a well-founded fear of persecution on the grounds that he was a member of particular social group being "minor child of Chinese family who is expected to provide support for other family members?

[13]            The Court of Appeal answered the foregoing certified question in the affirmative. The facts that were before it are, in the broadest sense, indistinguishable from the facts of this matter. That being said, for whatever reasons, the feared agents of persecution in that matter do not appear to have included the people smugglers who arranged for Mr. Lin to come to Canada. On the facts of this matter, the people smugglers who facilitated the Applicant's arrival in Canada are said to be potential persecutors of the Applicant since, it is assumed, the debt that the Applicant's father undertook to them to arrange the smuggling likely has fallen into arrears.

[14]            The short answer is that, as in Lin, the evidence before the Court and that was before the RPD simply does not support the Applicant's fear of persecution beyond the level of pure speculation, which is essentially the same conclusion that the Court of Appeal reached in Lin.

[15]            I am satisfied that the RPD made no reviewable error in determining that the Applicant was not a member of any particular social group within the scope of that term as it is used in the definition "Convention refugee".

b)         Underinclusiveness

[16]            The analysis conducted by the RPD on the issue of underinclusiveness of the definition "Convention refugee" with respect to "particular social group" with the result that the definition, it is urged, offends against the equality rights enshrined in section 15 of the Charter, is brief, almost to a fault. That being said, its reliance on the decision of the Supreme Court of Canada in Eldridge^[12] is not, as counsel for the Applicant urged, misplaced. By analogy to the reasoning in Eldridge, it is preferable to read the definition "Convention refugee" in conformity with subsection 15(1) of the Charter. To do so does not, I am satisfied, mandate an interpretation of "particular social group" such that, in the words of the RPD, all, "...persons who face serious threats to their human dignity and core human rights..." would be "Convention refugees". To extend the concept of "particular social group" that far would clearly run counter to the analysis of the meaning of that expression provided by the Supreme Court in Ward^[13]. As noted earlier, the RPD concluded:

The claimant ... must establish that there is a nexus between the threat and the definition.

[17]            I am satisfied that it was open to the RPD to conclude that the Applicant had not discharged the onus on him and in so concluding chose to interpret the definition "Convention refugee" and more particularly, the expression "particular social group" within that definition in a manner such that the definition is not underinclusive when read against subsection 15(1) of the Charter.

CONCLUSION

[18]            This application for judicial review will be dismissed.

CERTIFICATION OF A QUESTION

[19]            These reasons will issue without an accompanying Order. Counsel for the Applicant will have seven (7) days from the date these reasons are issued to serve and file submissions on any serious question of general importance that the Applicant would wish to propose for certification.

Thereafter, counsel for the Respondent will have seven (7) days to serve and file any responding submissions. Counsel for the Applicant will have a further three (3) days to serve and file any reply submissions. Thereafter, an Order will issue.

______________________________

         Judge

Ottawa, Ontario

September 12, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-478-03

STYLE OF CAUSE: CHEN, CHANG YEN and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                   TORONTO

DATE OF HEARING:                                     August 19, 2003

REASONS FOR ORDER:                           The Hon. Mr. Justice Gibson

DATED:                      September 12, 2003

APPEARANCES:

Mr. Clifford Luyt          FOR APPLICANT

Mr. David Tyndale       FOR RESPONDENT

Ms. Matina Karvellas

SOLICITORS OF RECORD:

Ms. Maureen Silcoff

Barrister and Solicitor

281 Eglinton Avenue East

Toronto, ON M4P 1L3                                       FOR APPLICANT

Mr. David Tyndale      

Department of Justice

130 King Street West

Suite 3400, Box 36

Toronto, Ontario M5X 1K6                                FOR RESPONDENT