Date: 20011114
Docket: IMM-6298-99
Neutral Citation: 2001 FCT 1237
Ottawa, Ontario, this 14th day of November 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
KONG PING WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
1. This is an application under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, as amended, for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated December 14, 1999, which held that the applicant was not a Convention Refugee.
2. The applicant is a citizen of China, and was sixteen years old at the time the CRDD made its decision. He claims to have a well-founded fear of persecution based on his membership in a social group, namely his family, and imputed political opinion related to his illegal exit from China.
3. The applicant alleges that in June of 1999, town officials came to his home attempting to collect 4,000 yen, a sum apparently owed by the applicant's father for taxes. The father was unable to pay. On July 25, 1999, the father was arrested and the family home was vandalized. Authorities ordered the applicant to discontinue his education and threatened him with detention if monies owed were not paid. This prompted the applicant's flight to Canada. The father was apparently still in detention at the time of the CRDD hearing.
4. The applicant was brought to Canada by human smugglers or "snakeheads". He left China on approximately August 11, 1999. He spent ten days in Vancouver and ten days in Toronto, during which time he was locked by the snakeheads in hotel rooms. He was taken to Montréal in early September. On September 2, 1999, the applicant was detained at the Canada/U.S. border after attempting to enter the United States illegally.
5. In addition to claiming a fear of persecution based on membership in a social group, the applicant argues that he is a refugee sur place because Chinese authorities would view his illegal exit and subsequent refugee claim as expressing political opinion. He alleges that he will suffer severe consequences if sent back to China. This fear is augmented due to the media coverage surrounding his arrest and the CRDD hearing.
6. Sur place refugee arguments were made in nine other applications for judicial review that were heard together with the applicant's. A separate set of reasons has been prepared to address this common issue and are attached to these reasons as Appendix A. The facts underlying the argument are common to all claimants and the decision on this issue applies equally to all applicants.
7. The CRDD determined that the applicant could not base his claim on his father's tax problems, as those problems were not linked to a Convention ground. The applicant's claim therefore failed for lack of nexus.
8. Counsel for the applicant does not dispute this finding since all of her submissions relate to the CRDD's sur place analysis. As a result, the CRRD's determination regarding lack of nexus will not be reviewed. The applicant's submissions related to the sur place issue have been rejected in reasons attached as Appendix A. Accordingly, this application is dismissed.
ORDER
For the reasons stated above, the application for judicial review of the decision of the Convention Refugee Determination Division, dated December 16, 1999, reasons for which are dated December 14, 1999, is dismissed.
The following question is hereby certified:
Where the fact that an applicant has applied for convention refugee status has been reported in the media in Canada, and the applicant makes a claim of refugee sur place as a result of that reporting, is it necessary for the applicant to prove
a) that the media reports came to the attention of the authorities in the country in respect of whom the applicant alleges a well-founded fear of persecution and
b) that the information contained in the media reports was sufficient to allow the authorities to identify the applicant
in order to succeed with respect to the refugee sur place claim?
"J.D. Denis Pelletier"
Judge
Docket: IMM-6298-99
APPENDIX A
Refugee Sur Place
9. The application for judicial review of ten applicants were heard together because of certain common issues, one of which was whether the applicants had become refugee sur place. Each of the applicants made a claim before the Convention Refugee Determination Division ("CRDD") on the basis of well-founded fear of persecution of imputed political opinion and refugee sur place based on the media attention surrounding their arrest, detention and subsequent applications for refugee status. Videotaped recordings of television coverage were submitted to the CRDD, as well as two newspaper articles. It was alleged that, due to the media attention, Chinese authorities would know that the applicants had claimed refugee status in Canada and would view the claims as political statements against the Chinese regime. In addition, the applicants claim that they would be severely punished for their illegal exit. The applicants submitted no evidence of actual differential treatment by Chinese authorities resulting from the existence of media exposure of their refugee claims.
10. These reasons apply to all of the applicants in respect of their allegation that the CRDD improperly assessed their claim to refugee status based on the notion of refugee sur place.
11. The CRDD identified the following questions as "central" to the sur place issue:
Would China be aware of this claim for refugee status? Would China consider leaving the country illegally and claiming refugee status as expressions of political opinion? If so, what would the consequences be for the claimant?[1]
12. The CRDD went on to address the question of whether punishment of the applicants by the Chinese government for their illegal exit would amount to persecution under the Convention. The CRDD cited the principles set forth in Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540, [1993] F.C.J. No. 584 (C.A.) (QL), that ordinary laws of general application are presumed to be valid and neutral and that the applicant must show that the law in question is persecutory in relation to a Convention ground.[2] The CRDD recognized the principle that a law of general application may be persecutory if the sanction is "totally out of proportion to the offence committed".[3] It emphasized, however, that for any refugee claim to be successful, any disproportionate sanction must be related to a Convention ground.
13. Citing a September 22, 1999 Response to Information Request, the CRDD noted that Chinese authorities have wide discretion in imposing sanctions for illegal exit. However, it found that nowhere in the document was it stated that imprisonment could be for more than three years, and nowhere was it suggested that China would perceive exiting illegally from the country or claiming refugee status as an expression of political opinion or as a factor that would influence the sanction. The CRDD referred to the following quotation:
[...] returnees are rarely imprisoned owing to a number of factors: the pervasiveness of the phenomenon of illegal immigration from Fujian, the volume of returnees from Australia, Japan, Taiwan, the United States and elsewhere, and the extensive influence of the snakeheads.[4]
14. An Australian 1994 Country Profile was also quoted:
In answer to claims in newspaper reports that deportees recently returned to Fujian were expected to pay high fines and attend reeducation centres if the fines were not paid, a Fujian official gave this reply. They had been detained at a PSB center for identity and health checks. After completion of the checks they would be returned to their home towns, all in the Fuzhou area. There would be some light pecuniary penalty. Although the Government regarded them as law breakers it was more appropriate to consider them as victims of illegal migration rackets. The official conceded that second offenders and evil organizers would be dealt with harshly.[5]
15. Another Response to Information Request was cited to show that returned migrants also have insufficient objective grounds to fear harassment by snakeheads upon return to China.[6]
16. The CRDD drew the following conclusions:
In summary, and applying the guidelines of Zolfagharkhani, the Chinese law concerning illegal exit is a law of general application, presumed valid and neutral. Even though the claimant alleged that the Chinese regime is generally oppressive, the claimant has not met his burden to demonstrate that the intent or principal effect on him of this law would be persecutory in relation to a Convention ground. In view of this conclusion, it is irrelevant whether the claimant could or could not be identified in the videos submitted in evidence and whether China would or would not know about the present claim for refugee status.[7]
17. Counsel for the applicants submit that the CRDD erred in deciding that it was irrelevant whether the applicants would be identified from the media exposure. Mr. Markaki argued that the CRDD only considered the issue of whether punishment for illegal exit was persecutory, without specifically dealing with how the applicants' well-publicized refugee claims would be viewed by Chinese authorities and the effect it might have on their punishment. It was submitted that this question should have been addressed by the CRDD "even in the absence of specific documentary evidence but on its knowledge of country conditions and the general documentary evidence which describes China as an oppressive regime which does not tolerate any political opposition or criticism of any kind".[8]
18. There are few guidelines and little jurisprudence on the proper evaluation of sur place claims. According to the UNHCR Handbook, a person can become a refugee sur place for reasons other than changing circumstances in her or his country of origin:
A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.[9]
19. The Supreme Court in Canada (Attorney General) v. Ward allowed for the possibility of imputed political opinion[10]:
[...] the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.
The ground of political opinion therefore appears to be flexible enough to encompass the sur place claim made by the applicants.
20. In my view, the essential problem for the applicants is the fact that no evidence was before the CRDD, documentary or otherwise, that substantiated their sur place allegation. The problem is implicit in the Supreme Court's statement in Ward that "[t]he absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution" (emphasis added). I can agree with Mr. Markaki that the CRDD limited its analysis to documentary evidence of punishment for illegal exit in China. However, I cannot agree that the CRDD should have determined how the Chinese government might view making a claim for refugee status "even in the absence of specific documentary evidence". If there is a distinction to be made respecting the treatment given to returnees who have claimed refugee status in Canada and other returnees, and if that treatment amounts to discrimination based on imputed political opinion, it should have been a matter of evidence before the CRDD. As Justice Nadon held in Kante v. Canada (Minister of Employment and Immigration)[11]:
The law is clear that the burden of proof lies with the Applicant i.e. he must satisfy the Refugee Division that his claim meets both the subjective and objective tests which are required in order to have a well founded fear of persecution.
21. In the absence of documentary evidence that the applicants would be persecuted based on political opinion imputed from their refugee claims, it was reasonable for the CRDD to draw no conclusion based upon evidence of publicity. It is not open to the CRDD to engage in speculation whether it is to the applicants' benefit or detriment.
22. In analysing the CRDD's decision, I am also guided by the principle articulated by Gibson J. in Biko v. Canada (Secretary of State), [1994] F.C.J. No. 1741 (T.D.) (QL):
The CRDD's decision must be interpreted as a whole. I would add to that that it must be interpreted as a whole in the context of all of the evidence that was before the CRDD.
23. Given the absence of evidence that would establish objective grounds for the applicants' fear of persecution based on imputed political opinion, and bearing in mind that the applicants had the burden of proof in this regard, I find that the CRDD did not commit a reviewable error in its evaluation of the applicants' sur place claim.
24. At the conclusion of this hearing, counsel asked me to certify the following question on the issue of refugee sur place:
Does knowledge by a country of a generally oppressive character of a refugee claim made by a national make this individual a refugee sur place?
25. In my view, such a question is not particularly clear because of the imprecision in the notion of "a country of a generally oppressive character". The issue in this case was whether a sur place claim could be maintained in the absence of evidence, that the making of a refugee claim by certain individuals had specifically come to the attention of the Chinese authorities. In my view, a more appropriate question, and one which I am prepared to certify, is:
Where the fact that an applicant has applied for convention refugee status has been reported in the media in Canada, and the applicant makes a claim of refugee sur place as a result of that reporting, is it necessary for the applicant to prove
a) that the media reports came to the attention of the authorities in the country in respect of whom the applicant alleges a well-founded fear of persecution and
b) that the information contained in the media reports was sufficient to allow the authorities to identify the applicant
in order to succeed with respect to the refugee sur place claim?
[1] See IMM-6306-99, Applicants' Record at page 11
[9] Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1998, page 22
[10] (1993), 103 D.L.R. (4th) 1 at page 39
[11] [1994] F.C.J. No. 525 (T.D.) (QL)
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